Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”).  With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties.  These petitions can be primary jurisdiction referrals or be presented directly by a litigant in a TCPA action.  The FCC currently has a number of petitions pending related to TCPA interpretation.  The tracker below briefly summarizes each petition and the issues presented in them.

 New and Noteworthy

FCC Issues Declaratory Ruling That Schools and Utility Companies May Make Certain Auto-Dialed Calls Under the TCPA

On August 4, 2016, the FCC issued a Declaratory Ruling in which it determined that school callers and utility companies are permitted under the TCPA to make autodialed calls and send automated texts in certain circumstances.  The ruling specifically responds to two petitions seeking such a ruling.  The petitioners are as follows:

• Blackboard, Inc. – Blackboard sought a declaratory ruling that the TCPA rules “do not apply to informational, non-commercial, nonadvertising, and non-telemarketing autodialed and prerecorded messages sent by Blackboard’s educational institution customers because those calls are made for ‘emergency purposes.’”  Blackboard was sued under the TCPA on the basis of informational calls and text messages sent to consumers regarding educational information (i.e. school announcements and closures).  Blackboard transmits these calls and messages to phone numbers provided by schools that participate in the notification program.  Blackboard argues that these informational messages should be distinguished from telemarketing calls and that they are made for “emergency purposes” and therefore not subject to the same consent and delivery restrictions as other calls.
• Edison Electric Institute and American Gas Association – EEI and AGA asked the Commission to issue a declaratory ruling that a “utility customer’s provision of a telephone number, including a cellphone number, to an energy utility satisfies the TCPA consent requirements for such customer to receive non-telemarketing, informational calls at that number related to the customer’s utility service.”  The petition noted that although the Commission has previously indicated that certain communications from a utility company to its customers are exempt from the TCPA’s consent requirements (i.e. for emergency communications), it had not issued a “comprehensive statement” on the issue of what consent is required for non-emergency communications from energy utilities.  The petition claimed that the absence of such a statement has allowed “an aggressive plaintiffs’ bar” to pursue TCPA litigation against utility companies “that, in a rational world, would kindly be described as absurd.”

With respect to Blackboard’s petition, the Commission granted in part and denied in part a request to confirm that all auto-dialed calls made by an educational organization are made for an “emergency purpose,” and therefore would be exempt from the TCPA.  Specifically, the Commission determined that “autodialed calls to wireless numbers made necessary by a situation affecting the health and safety of students and faculty are made for an emergency purpose,” while other informational calls (such as reminders of parent-teacher conferences) would not fall under the emergency purpose TCPA exception, and therefore would be subject to prior express consent requirements.  Describing this consent, however, the Commission stated that “when a parent/guardian or student provides only their wireless number as a contact to a school, the scope of consent includes communications from the school closely related to the educational mission of the school or to official school activities absent instructions to the contrary from the party who provides the phone number.”  (emphasis added).  Note:  in this passage, the Commission is summarizing prior orders relating to the provision of consent for non-telemarketing calls to wireless numbers.  However, the passage creates ambiguity because prior orders discuss any situation in which a consumer provides a wireless number as a contact number; nothing in prior orders suggests that the consent analysis varies based on whether the consumer provided only wireless number or provided other contact number(s) as well.    

Additionally, the Order denies Blackboard’s request for confirmation that consent transfers after a phone number has been reassigned, finding that such a request is moot in light of the Commission’s statements on reassigned phone numbers in the 2015 Omnibus TCPA Declaratory Ruling.

The Order also extends the “emergency purpose” exemption for school callers to “third parties sending emergency messages, e.g., in cooperation with schools to disseminate time-sensitive alerts … as long as the messages are limited to the emergency at issue and do not include any marketing.”  Commissioner Jessica Rosenworcel dissented from this portion of the decision, asserting that “while perhaps unintended, this overbroad conclusion has the potential to become a gaping loophole that multiplies the number of unwanted robocalls consumers receive.” 

In its discussion of the EEI/AGA petition, the declaratory ruling similarly found that a customer’s provision of his or her wireless phone number to a utility company constitutes consent to receive certain calls from that utility company about matters related to the service.  Such calls can include calls to current customers to warn that failure to make payment will result in service curtailment.  The order was clear, however, that “the utility company will bear the burden of showing it obtained the necessary prior express consent.”  Additionally, unlike the Blackboard part of the decision, the Commission did not address whether communications sent by utility companies to their customers would fall within the TCPA’s “emergency purpose” exception.  (The EEI/AGA petition had originally requested such a statement, but petitioners subsequently withdrew this portion of the request.)

D.C. Circuit Court Announces Oral Argument Date for TCPA Omnibus Order Appeal

On July 25, the U.S. Court of Appeals for the D.C. Circuit announced that it will hear oral arguments in the case of ACA International et al. v. FCC on Wednesday, October 19, 2016 at 9:30 A.M.  The petitioners in this case have challenged the validity of the FCC’s July 2015 Omnibus TCPA Declaratory Ruling, in which the Commission, among other things, expanded the meaning of the term “automatic telephone dialing system” and found that subscriber consent to receive calls does not transfer if a phone number is reassigned.

            FCC Approves New Government Debt Collection Rules

According to news reports, on August 2, the FCC Commissioners approved new rules to implement a TCPA exemption for calls related to government debt collection that was adopted as part of the Bipartisan Budget Agreement of 2015.  The text of the rules has not yet been made public, but August 2 was the deadline for the Commission to implement such rules as required by the 2015 law. 

FCC Chairman Wheeler Turns to the FCC Blog to Encourage Robocall Blocking

On July 22, FCC Chairman Tom Wheeler penned a blog post on the Commission’s website highlighting the efforts at the agency to prevent unwanted automated and prerecorded message calls restricted under the Telephone Consumer Protection Act (TCPA).  In particular, the blog post discussed recent and upcoming rulemakings, declaratory decisions, and enforcement actions, as well as efforts to engage industry stakeholders such as telephone companies and parties that facilitate mass calling, to address what the Chairman deemed “the number one complaint the FCC receives from consumers.”  At least for the remainder of Chairman Wheeler’s tenure at the FCC, the Commission appears focused on consumer protection issues, especially with regard to so-called “robocalls.”

Of particular interest was the Chairman’s statement that he recently sent letters to the CEOs of major wireless and wireline phone companies, as well as intermediary carriers that connect high volume callers to the consumer’s phone company, calling on them to either offer or facilitate the offering of call-blocking technologies that would curb the number of calls consumers receive.  He further implored these companies to “accelerate the development and deployment of technical standards that would prevent spoofing of caller ID and thus make blocking technologies more effective, as was done in the battle against spam years ago.”  The post added “[t]he Commission has done its part, making clear that phone companies face no legal barriers to helping consumers block unwanted calls with the use of robocall blocking technology.  Today, we urge carriers to step up to take that responsibility.”  Chairman Wheeler noted that he asked all recipients of these letters to “respond within 30 days with their concrete, actionable solutions to address these issues.”  Just three days after the release of the blog post, AT&T responded to the Chairman’s request, stating that it would begin offering call blocking services to its customers.

Chairman Wheeler also highlighted recent enforcement actions and rulemakings in response to complaints about particular companies or narrow issues related to calls under the TCPA (such as the current rulemaking to regulate government debt collection calls).  He further suggested that additional clarification from the Commission “relating to certain robocalls that utility companies and schools can make” will be coming soon.  Presumably this statement refers to declaratory rulings in response to petitions filed by Blackboard, Inc., and the Edison Electric Institute and American Gas Association, which sought clarification on the permissibility of placing non-telemarketing, informational calls on behalf of school districts and utility/electric companies.

The FCC under Chairman Wheeler has been one of the most active consumer enforcement Commissions in recent memory.  We expect the Chairman to continue to push this consumer enforcement agenda in the coming months, particularly with respect to TCPA issues.  As such, companies that may be subject to the FCC’s jurisdiction due to their telemarketing efforts should take precautions in order to avoid being the subject of unwanted FCC attention.

Awaiting Decision (Items on “Circulation”)         

None    

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent"

1. Mortgage Bankers Association (filed June 16, 2016)

• The Mortgage Bankers Association seeks an exemption from the TCPA’s prior express consent requirement for “certain non-telemarketing residential mortgage servicing calls [and text messages] to cellular telephone numbers” that mortgage servicers are required to make to borrowers at various times throughout a loan pursuant to other state and federal statutes.  The MBA notes that although some mortgage servicers will be covered by the TCPA exemption established in the 2015 Bipartisan Budget Act, others are not because the exemption only covers debts (including residential mortgages) that are owed to or guaranteed by the United States.  The MBA seeks to expand this exemption to all residential mortgage servicers.  The exemption requested would, according to the petition, clarify any discrepancies between the TCPA and other federal and state laws and regulations that “require mortgage servicers to place outbound telephone calls to borrowers at various times throughout a loan.”
• On August 3, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-883) seeking comment on the petition.  Comments are due on September 2, 2016 and replies are due on September 19, 2016.

3. Mobile Media Technologies (filed March 7, 2016)

• MMT seeks a declaratory ruling to clarify that neither the TCPA nor the FCC’s July 2015 Omnibus order “require a party transmitting a text message to create or make available to consumers a specific or particular method by which a consumer may revoke prior express consent to be texted, including bilateral reply “STOP” text messaging functionality.”  The petition also asks the Commission to clarify that a “reasonable method” of revoking consent “must, at a minimum, be a method that actually reaches the texting party.”  MMT is a text broadcaster, and claims that many of its licensees are facing TCPA litigation, in part because MMT’s system was not previously set up for bilateral text messaging functionality such that a text recipient could revoke consent by texting the word “STOP.”  MMT argues that nothing in the TCPA mandates that a texting party provide consumers any specific or particular method to revoke consent, so long as the method employed is reasonable.  

4. Rita’s Water Ice Franchise Company, LLC (filed December 2, 2015)

• Rita’s has requested a limited retroactive waiver of the Commission’s “prior express written consent” rule for certain promotional text messages sent to customers between October 16, 2013 (the effective date of the rule) and July 17, 2015 (when Rita’s ceased sending all text messages).  Like many other petitioners seeking TCPA relief or clarification from the FCC, Rita’s is currently defending itself in a class action lawsuit based on these promotional text messages.
• Rita’s argues that it is entitled to a similar waiver to that which was granted to the Coalition of Mobile Engagement Providers and the Direct Marketing Association in the Commission’s July 2015 TCPA Order, in recognition that “there was legitimate confusion over whether a written consent obtained before October 16, 2013 remained valid after that date if the written consent did not precisely track the new ‘prior express written consent’ standard.”  The waiver Rita’s seeks would only apply to those messages for which the company had received the recipient’s consent prior to October 16, 2013.
• On December 14, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1421) seeking comment on the petition.  Comments were due on January 13, 2016 and replies were due on January 28, 2016.

5. National Cable & Telecommunications Association (filed October 1, 2015)

• The NCTA seeks to have extended to its members the retroactive and prospective waiver granted by the Commission in its July 2015 TCPA order of its rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  NCTA argues that the same relief that was given to the Direct Marketing Association and others is warranted for its members because they have “suffered the same confusion, and are exposed to the same kind of ‘pointless and expensive class action litigation’” as the entities that originally received the waiver.  NCTA noted in its petition that although the prospective aspect of the waiver was set to expire on October 7, its members would still benefit from it because it “would provide NCTA’s members sufficient time to comply with the prior express written consent requirement and would enable NCTA’s members to better defend claims and avoid unnecessary and costly litigation moving forward.”
• On November 3, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1246) seeking comment on the petition.  Comments were due on December 3, 2015 and replies were due on December 18, 2015.

6. National Association of Broadcasters (filed August 18, 2015)

• The NAB seeks to have extended to its members the retroactive and prospective waiver of the Commission’s rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  The waiver was originally granted in the Commission’s July 2015 TCPA order to the Coalition of Mobile Engagement Providers, the Direct Marketing Association, and the Retail Industry Leaders Association.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

7. American Bankers Association (filed August 8, 2015)

• The American Bankers Association seeks a reconsideration and modification of the exemptions granted to financial institutions in the Commission's Declaratory Ruling and Order. The exemption permits financial institutions to send automated, free-to-end-user calls and texts to mobile devices concerning potentially fraudulent transactions, breaches of customers' personal data, remediation measures to prevent identity theft, and notification of money transfers. However, the exemption permits calls and texts only to "the wireless telephone number provided by the customer." The ABA argues that this "provided by" limits the value of the exemption and order should be modified to read "exempted calls and texts may be sent only to affected customers and money transfer recipients."

8. F-19 Petition (filed July 29, 2015)

• Fitness 19 (F-19), a national gym franchise, seeks a retroactive waiver of the application of 47 U.S.C. § 227 and FCC Order 12-21 "with respect to the requirement to obtain additional express consent from gym members prior to sending text message marketing correspondence through an automated telephone dialing system."  F-19 seeks the same benefit the FCC conferred upon members of the Direct Marketing Association (DMA).5.     
• F-19, like many other petitioners, is currently fighting a TCPA class action suit related to contacting its customers through automated messages.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

9. Kale Realty (filed July 23, 2015)

• Kale Realty (Kale) is seeking a retroactive waiver regarding the written consent requirements contained in section 64.1200(a)(2).  Kale Realty is fighting a putative class action lawsuit based on a single unsolicited text advertisement that Kale argues was in essence a job ad.  Kale had a prior personal and professional relationship with the recipient.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

10. Mammoth Mountain Ski Area, LLC (filed February 23, 2015)

• Mammoth Mountain’s petition seeks a declaratory ruling either that: (1) “consents obtained prior to the October 16, 2013 rule change through consumers’ voluntary provision of their telephone number remain valid as prior contractual obligations and invalidating these consents amounts to an improper retroactive impairment of Mammoth Mountain’s contractual rights”; or (2) the Commission misinterpreted the meaning of “prior express consent” in its 2012 order finding that prior express consent required a company to obtain the consumer’s written consent.
• Mammoth Mountain, like many other petitioners, is currently fighting a TCPA class action suit related to telemarketing calls made former customers.
• On March 9, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-300) seeking comment on the petition.  Comments were due on April 6, 2015 and replies are due on April 21, 2015.

Petitions Relating to “Junk” Faxing Rules

1. RingCentral, Inc. (filed July 6, 2016)

• RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose facilities or services are used by a third party content generator is not itself the "sender" of a facsimile, for purposes of the TCPA’s prohibition against sending unsolicited advertisements by facsimile; and (2) de minimis promotional phrases contained in otherwise bona fide informational, transactional or even another party's unsolicited fax advertising communications do not constitute “unsolicited advertisements” in violation of the TCPA.  Alternatively, RingCentral has asked the Commission to clarify that in certain limited circumstances fax broadcaster “senders” can rely on third party “consent” for sending de minimis promotional information along with a facsimile that is otherwise lawfully sent by the fax broadcaster's customer to a third party recipient. 
• RingCentral filed its petition in part because it has been named as a defendant in a class action lawsuit alleging TCPA violations based on fax advertisements it sent to third party recipients on behalf of its customers.
• On July 29, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-863) seeking comment on the petition.  Comments are due on August 29, 2016 and replies are due on September 13, 2016.

2. Kohll's Pharmacy & Homecare, Inc. (filed Mar. 24, 2016)

• The petition, filed by a provider of medical equipment, requests a declaratory ruling that facsimiles sent on its behalf did not violate the TCPA “where the facsimiles simply informed businesses of the health benefits of corporate flu vaccines.”  The petitioner claims that such transmissions do not fit within the definition of an “unsolicited advertisement” because “the purpose of the facsimile transmission was to ‘promote wellness … so that people would get vaccinated and not get ill.’” 
• Kohll’s, like many other petitioners, is currently fighting a TCPA class action suit related to faxes sent on its behalf that purportedly violate the Act.

3. Joseph T. Ryerson & Son, Inc. (filed Nov. 4, 2015)

• Petitioner Joseph T. Ryerson & Son, Inc. (“Ryerson”) has asked the Commission to issue a declaratory ruling that “faxes that initiate in digital form and are received in digital form do not fall within the TCPA.”  Ryerson argues that these types of transitions are more akin to emails than traditional faxes, and therefore should be regulated under the CAN-SPAM Act.  It further argues that applying the TCPA to digital fax transmissions would violate the First Amendment and would be void for vagueness under the First and Fifth Amendments.
• Ryerson, like many other petitioners, is currently fighting a TCPA class action suit related to alleged unsolicited faxes received by the plaintiff from Ryerson.

4. Westfax, Inc. (filed Oct. 23, 2012)

• In its petition, Westfax sought clarification of several issues related to sending e-faxes, noting that he Commission had not updated its rules since 2006.  First, the company asked the Commission to clarify whether e-faxes are considered faxes, as well as whether and to what extent TPCA and Junk Fax Protection Act rules apply to e-faxes.  Second, they ask who is considered the "recipient of an e-fax.
• The petition also requests clarification on a number of questions related to "opt-out" requirements, including whether standard "opt-out" language would be acceptable and the liability of third-party fax broadcasters.

Anda, Inc. Retroactive Waiver.  On October 30, 2014, the FCC released an order addressing an application for review filed by Anda, Inc. and related petitions seeking clarification of the Commission’s rules requiring individuals and entities that send fax advertisements to include certain information on the fax to allow recipients to “opt-out” of receiving such transmissions in the future.  The FCC denied all of the petitions insofar as they requested the FCC to rule that the “opt out” language requirement did not apply to faxes sent with the prior express consent of the recipient, but granted a retroactive waiver to the petitioners and other similarly situated parties because the scope of the opt-out requirement was previously unclear.  Prior to October 30, 2014, there were 24 additional petitions pending that sought clarification of the  “opt-out” notice requirement in Section 64.1200(a)(4)(iv) of the FCC’s rules.  Through the Anda order (FCC 14-164), the Commission granted a retroactive waiver of the opt-out notice requirement): Anda, Inc.; Forest Pharmaceuticals, Inc.; Staples, Inc.; Gilead Sciences, Inc.; Douglas Walburg/Richie Enterprises, LLC; Futuredontics, Inc.; All Granite & Marble Corp.; Purdue Pharma; Prime Health Services, Inc.; TechHealth, Inc.; Crown Mortgage Company; Magna Chek, Inc.; Masimo Corp.; Best Buy Builders, Inc.; S&S Firestone, Inc.; Cannon & Associates d/b/a Polaris Group; Stericycle, Inc.; American CareSource Holdings, Inc.; Carfax, Inc.; Merck and Company, Inc.; UnitedHealth Group, Inc.; MedLearning, Inc. and Medica, Inc.; Unique Vacations, Inc.; and Power Liens, LLC.

Prior to the Anda order, but not addressed in that order, two parties had petitioned for similar relief.  Francotyp-Postalia, Inc. (FP Mailing Solutions, Inc.) (filed October 14, 2014); Allscripts (several petitioners filed this collectively) (filed September 30, 2014).  On November 4, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1598) seeking comment on the petitions.  The Public Notice stated that, as a result of the Anda order, it was not necessary to consider these petitioners’ requests for declaratory ruling.  It sought comment on the requests for retroactive waiver consistent with the Anda order.  Comments were due on November 18, 2014 and replies were due on November 25, 2014.

On August 28, 2015, the Consumer & Governmental Affairs Bureau released an Order granting retroactive waivers to 117 petitioners, consistent with the FCC’s October 2014 decision in Anda.  Generally, the Bureau Order granted petitions filed before June 23, 2015.  Following the Order, the Commission has received seven applications for review of the decision to grant the waiver.  In response, more than a dozen of the entities that benefited from the retroactive waiver have filed oppositions to these applications.  However, the Commission has not yet responded to the requests.

Since the August 2015 order was released, the following parties have sought retroactive waivers on this issue:

• Megadent, Inc. (June 24, 2015) – granted 12/9/15 (DA 15-1402)
• Ivoclar Vivadent, Inc. (June 24, 2015) – denied 12/9/15 (DA 15-1402)
• Renaissance Systems and Services, LLC (June 25, 2015) – denied 12/9/15 (DA 15-1402)
• Zimmer Dental, Inc. (July 16, 2015) – denied 12/9/15 (DA 15-1402)
• Costco Wholesale, Corp. (July 20, 2015) – granted 12/9/15 (DA 15-1402)
• Athena Health, Inc. (August 6, 2015) – denied 12/9/15 (DA 15-1402)
• Ohio National Mutual, Inc. (August 21, 2015) – denied 12/9/15 (DA 15-1402)
• McVey Associates, Inc. (August 31, 2015) – withdrawn on 10/15/15
• Dental Fix Rx LLC (September 11, 2015) – granted 12/9/15 (DA 15-1402)
• Scrip Holding Co. (September 17, 2015) – granted 12/9/15 (DA 15-1402)
• Source Media LLC (September 21, 2015) – granted 12/9/15 (DA 15-1402)
             (Application for review of the waiver as applied to Source Media filed 1/5/16)
• Virbac Corporation (November 9, 2015)
• Advanced Care Scripts, Inc. (November 12, 2015)
• Fetch, Inc. d/b/a Petplan (November 25, 2015)
• AZCOMP Technologies, Inc. (December 4, 2015)
• Weinberg & Associates (December 8, 2015)
• Humana Insurance Company et al. (December 18, 2015)
• Posture Pro, Inc. (February 23, 2016)
• LKN Communications, Inc., d/b/a ACN, Inc. (March 1, 2016)
• Educational Testing Service (March 16, 2016)
• Inter-Med, Inc. d/b/a Vista Dental Products (March 25, 2016)
• Legal & General America, Inc. (March 31, 2016)
• Jeana Fleitz, LLC d/b/a The X-Ray Lady (April 6, 2016)
• C. Specialties, Inc. (April 26, 2016)
• Buccaneers Limited Partnership (April 28, 2016)
• Warner Chilcott Corporation (May 20, 2016)
• Wedgewood Village Pharmacy, Inc. (May 24, 2016)
• Roche Diagnostics Corporation (June 2, 2016)
• Amatheon, Inc. (June 3, 2016)
• HomeoPet, LLC (June 13, 2016)
• Synchrony Bank d/b/a CareCredit and Synchrony Financial (June 13, 2016)
• Cochran Wholesale Pharmaceutical, Inc. (June 14, 2016)

On July 31, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-876) seeking comment on the following petitions: Megadent, Inc.; Ivoclar Vivadent, Inc.; Renaissance Systems and Services, LLC.; Zimmer Dental, Inc.; and Costco Wholesale Corp. Comments were due August 14, 2015 and replies were due on August 21, 2015.

On September 25, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1077) seeking comment on the following petitions: McVey Associates, Inc.; Dental Fix Rx LLC; Scrip Holding Co.; and SourceMedia LLC.  Comments were due October 9, 2015 and replies were due on October 16, 2015.

On December 4, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1381) seeking comment on the following petitions: Virbac Corporation, Advanced Care Scripts, Inc., and Fetch, Inc. d/b/a Petplan.  Comments were due on December 18, 2015 and replies were due on December 30, 2015.

On January 29, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-102) seeking comment on the following petitions: AZCOMP Technologies, Inc.; Weinberg & Associates; Humana Insurance Company et al.  Comments were due on February 12, 2016 and replies were due on February 19, 2016.

On March 25, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-317) seeking comment on the following petitions: Posture Pro, Inc.; LKN Communications, Inc. d/b/a ACN, Inc.; and Educational Testing Service.  Comments were due on April 8, 2016 and replies were due on April 15, 2016.

On May 31, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-598) seeking comment on the following petitions: Warner Chilcott Corporation and Wedgewood Village Pharmacy, Inc.  Comments were due on June 14, 2016 and replies were due on June 21, 2016.

Other Petitions

1. Anthem, Inc.; Blue Cross Blue Shield Association; Wellcare Health Plans, Inc.; American Association of Healthcare Administrative Management (filed 7/28/16)

• The joint petitioners seek clarification from the FCC regarding certain statements in the 2015 Omnibus TCPA Order related to non-telemarketing healthcare calls.  Specifically, the petitioners have asked the FCC to issue a declaratory ruling and/or clarify two items: (1) that the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term “healthcare provider” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA covered entities and business associates.”  The petitioners assert that these clarifications are necessary to harmonize the TCPA and HIPAA, and point out that the FCC has previously looked to HIPAA for guidance on how to interpret healthcare calls under the TCPA.

3. Todd C. Bank (filed Mar. 7, 2016)

• The petitioner, an attorney with a home-based business, has asked the Commission to clarify that the rules prohibiting robocalls “apply to calls made to home-business telephone lines that are registered with the telephone-service provider as residential lines.”  He argues that such a clarification would be consistent with the language of the TCPA which states that the robocall provision of the Act applies to “any residential telephone line.”  He further asserts that this interpretation would be consistent with prior statements by the FCC on this issue. 
• Mr. Bank is currently appealing a dismissal by the U.S. District Court for the Eastern District of New York of his class action lawsuit for TCPA violations.  Following submission of his petition, the FCC filed an amicus curiae brief in support of Mr. Bank’s request to stay the appellate case pending the Commission’s disposition of his FCC petition.
• On March 31, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-341) seeking comment on the petition.  Comments were due on May 2, 2016 and replies are due on May 17, 2016.

4. Papa Murphy's Holdings, Inc. and Papa Murphy's International L.L.C (filed Feb. 22, 2016)

5. Lifetime Entertainment Services, LLC (filed Dec. 11, 2015)

• Lifetime has asked the Commission to clarify that the TCPA and the Commission’s implementing rules “do not cover calls (including unsolicited, pr~recorded ones) providing information about television programing distributed by cable operators and cable programming networks that are intended to reach the cable operator's subscribers who are already entitled to watch such cable programming without having to pay any additional charges.”  Lifetime asserts that these calls are purely informational and not made for the purpose of advertising or marketing, and therefore not within the scope of the TCPA. 
• On February 5, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-128) seeking comment on the petition.  Comments were due on March 7, 2016 and replies were due on March 21, 2016.

6. Anthem, Inc. (filed June 10, 2015)

• Anthem submitted a petition seeking a declaratory ruling and exemption regarding non-telemarketing healthcare calls.  Anthem asks that the FCC make non-telemarketing health care calls and text messages from health plans and providers subject to an “opt out” rather than “opt in” consent regime.  Anthem argues that these calls provide important information regarding the health and wellness of its members and provide an unique level of benefit to the consumer.
• Anthem also asks that new categories of calls be added to the FCC’s existing list of calls already subject to the opt-out regime. Anthem identifies those calls that are (1)  case management calls to engage consumers in the treatment of existing medical conditions (2) preventative medicine calls to arm patients with information necessary to seek preventive care or (3) calls to arm consumers with information about using and maintaining medical benefits.
• On August 31, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-979) seeking comment on the petition.  Comments were due on September 30, 2015 and replies were due on October 15, 2015.
• Note:  Although the petition was filed before the FCC’s TCPA Declaratory Ruling and Order (FCC 15-72), the Order did not address Anthem’s request.

7. Vincent Lucas (filed June 18, 2014)

• Vincent Lucas asks for an expedited declaratory ruling holding that a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates 47 U.S.C. § 227(b) or (c).
• The individual who filed this petition is currently involved in a lawsuit in which he alleges that three companies and two individuals “provided substantial assistance to several telemarketers while knowing that those telemarketers were engaged in practices that violate the TCPA.”  In his petition, Mr. Lucas claims that the magistrate judge in the litigation misinterpreted a former FCC ruling on vicarious liability and is planning to dismiss his vicarious and contributory liability claims.  
• On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-976) seeking comment on the petition.  Comments were due on August 8, 2014 and replies were due on August 25, 2014.

8. Acurian, Inc. (filed Feb. 5, 2014)

• Acurian filed a petition seeking clarification that telephone call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on prerecorded calls under the TCPA.  Acurian argues in its petition that it does not make calls for a commercial purpose.  Alternatively, the petition asserts that if Acurian’s calls are found to be commercial, that they do not constitute telemarketing or advertising calls. 
• On February 20, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-229) seeking comment on the petition.  Comments were due on March 24, 2014 and replies were due on April 8, 2014.

[View source.]