TCPA FCC Petitions Tracker

by Kelley Drye & Warren LLP
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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.

Number of Petitions Pending

New Petitions Filed

Upcoming Comments

Decisions Released

19 (+25 seeking a retroactive waiver of the opt-out requirement for fax ads)

C. Specialties, Inc.; Buccaneers Limited Partnership – fax waiver petitions

Inter-Med, Inc. d/b/a Vista Dental Products; Legal & General America, Inc.; Jeana Fleitz, LLC d/b/a The X-Ray Lady; C. Specialties, Inc.; Buccaneers Limited Partnership (waiver of fax ad rules per the Anda Order)
(Comments due 5/13/15; Replies due 5/20/16) 

Todd C. Bank (scope of ATDS prohibitions for residential telephone lines)
(Replies due 5/17/16) 

Kohll’s Pharmacy & Homecare, Inc. (waiver of fax ad rules per the Anda Order)
(Comments due 5/23/16; Replies due 6/6/16) 

Mobile Media Technologies (clarification of the consent rules and revocation of consent)
(Comments due 5/27/16; Replies due 6/13/16)  

None

New and Noteworthy:

FCC Approves Release of NPRM to Implement Government Debt TCPA Exemption

On May 4, 2016, the FCC commissioners voted to commence a rulemaking proceeding to create carve-out in the Commission’s rules against robocalls for calls that are placed for the purpose of collecting “a debt owed to or guaranteed by the United States.”  The new rules will be adopted pursuant to an amendment to the TCPA adopted as part of the Bipartisan Budget Agreement of 2015 (“Budget Act”) that allows for such calls.  In its Notice of Proposed Rulemaking (“NPRM”), the Commission seeks comment on a number of issues related to implementation of the amendment, including the following:

  • What types of calls should be covered by the exemption?  The Budget Act created the TCPA exemption for calls made “solely to collect a debt” owed to the United States.  The Commission seeks comment on the proper interpretation of that language.  It also proposes to allow debt servicing calls under the exemption because such calls “may provide a valuable service by offering information about options and programs designed to keep at-risk debtors from defaulting or becoming delinquent on their loans.”  Finally, the Commission seeks comment on the proper interpretation and scope of the phrase “owed to or guaranteed by the United States.” 
  • Who can be called?  The Commission proposes that the exemption will cover “only calls to the person or persons obligated to pay the debt.”  It would exclude calls to persons the caller does not intend to reach, and would apply the “one-call window” rule for reassigned numbers.  The Commission seeks comments on these proposals and asks commenters to provide alternative approaches they feel would be appropriate.
  • Who may place the calls?  The Commission proposes that the exemption would cover calls made by creditors and those calling on their behalf, including agents.  It seeks comment on whether it should adopt this approach, or consider a narrower or broader interpretation under the Budget Act exemption.
  • How should the Commission limit the number and duration of the calls?  The Budget Act provides the Commission with discretion to restrict covered calls, including by limiting the frequency and duration of the calls.  Thus, the Commission has proposed a three-call-per-month maximum for autodialed, prerecorded, or artificial voice calls to wireless numbers.  The limit would apply regardless of whether a call went unanswered.  The Commission posits whether a different limitation would be appropriate for live agent calls.  Without setting forth specific proposals, the Commission also seeks comment on the appropriate duration for the calls, as well as other restrictions (i.e. limiting calls hours to 8:00 AM to 9:00 PM). 
  • Should consumers be permitted to stop covered calls?  The Commission proposes “that consumers should have a right to stop [covered] calls at any point the consumer wishes.”  It proposes that stop-calling requests would continue to apply even after the debt is transferred to other collectors.  It further proposes to require callers to inform consumers of their right to make a stop-calling request. 

Comments on the Commission’s proposals are due on June 6, 2016 and replies are due on June 21, 2016.  Following the comment period, we expect the proceeding to move quickly because the Commis

Awaiting Decision (Items on “Circulation”)         

Broadnet Teleservices LLC; National Employment Network Association Declaratory; and RTI International – TCPA exemption for calls by or on behalf of the government
(circulated 3/14/16)

Broadnet, NENA, and RTI filed separate petitions seeking a declaratory ruling that the TCPA and the Commission’s implementing rules do not apply to calls made by or on behalf of federal, state, and local governments when such calls are made for official purposes.  The draft declaratory ruling on circulation will address all three petitions.

Broadnet offers a service called “Teleforum” through which elected officials and other government representatives can contact consumers about issues that may be relevant to them.  Broadnet asserts that due to ambiguity in the Commission’s interpretation of the TCPA, consumers who rely only on wireless phones may be “deprived” of such communication.  As such, Broadnet asks the Commission to declare that, pursuant to the plain meaning of the statute, “the term ‘person’ does not include federal, state, and local government entities and officers acting in their official capacities.”

RTI, a contractor that conducts research calls on behalf of several federal government agencies, argues that the United States government is exempt from the TCPA because it does not fall within the definition of “person” and the TCPA only prohibits calls by persons.  RTI was recently sued after making calls as part of the National Intimate Partner and Sexual Violence Survey, and claims that if the FCC does not clarify that the government is exempt from TCPA restrictions, similar future litigation will “threaten the continued viability” of similar research surveys.

NENA is an organization comprised of providers of employment services for individuals that receive Social Security Disability Insurance or Supplemental Security Income.  These providers are contracted by the Social Security Administration.  Specifically, the petition asks that the Commission clarify that these providers are exempt from the autodialer or prerecorded call restrictions because they “have a mandate to contact program-eligible beneficiaries to inform them about their options for returning to self-supporting employment.”

Blackboard, Inc. – limits on TCPA jurisdiction
(filed February 24, 2015; circulated on 12/21/15)

Blackboard submitted a petition seeking 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.’”  Alternatively, Blackboard asks the Commission for a broad reading of prior express consent to include either the wireless number called (even if the number has been reassigned) or the intended recipient of the call rather than an inadvertent recipient. 

Blackboard is the subject of a TCPA lawsuit 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.

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent"

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

  • 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.

2. 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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.

9. Edison Electric Institute and American Gas Association (filed February 12, 2015)

  • EEI and AGA have 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 notes 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 has not issued a “comprehensive statement” on the issue of what consent is required for non-emergency communications from energy utilities.  The petition claims 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.”
  • On February 24, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-244) seeking comment on the petition.  Comments were due on March 26, 2015 and replies are due on April 10, 2015.

10. Citizens Bank, N.A. (filed January 16, 2015)

  • Citizens Bank seeks a declaratory ruling that “when a called party has taken purposeful and affirmative steps to advertise her cell phone number as the point of contact for normal business communications, non-telemarketing calls made to that cell phone number are exempt from liability under” the TCPA.  The company argues that by “inviting the public, through advertisements, to call that cell phone number,” an individual has consented to receiving at least non-telemarketing calls – even if those calls are auto-dialed or pre-recorded.
  • Citizens Bank notes in its petition that the company is fighting a TCPA lawsuit in which the plaintiff claims that Citizens Bank is vicariously liable for debt collection calls made to her cell phone (that she used in advertisements for her business) on behalf of Citizens Bank.  In support of its argument that the calls did not violate the TCPA, the company points to the statute’s legislative history and previous statements by the FCC indicating that in other contexts (i.e. facsimiles), making a number available to the public denotes consent to receive calls to that number.
  • On February 12, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-209) seeking comment on the petition.  Comments were due on March 16, 2015 and replies were due on March 31, 2015.

Petitions Relating to “Junk” Faxing Rules

The following petitions pertaining to the same requirement are still pending in the TCPA docket:

1. 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.

2. 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.

3. 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)

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 are due on April 15, 2016.

Other Petitions

1. 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.

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

  • Papa Murphy’s seeks a retroactive waiver of the Commission’s TCPA rules for text messages sent to individuals who had provided written consent to receive such messages from the company between October 16, 2013 and June 17, 2015.  Papa Murphy’s claims that it is similarly situated to parties that received a waiver of the FCC’s “prior express written” consent requirement for calls to mobile phones in the July 2015 Omnibus TCPA Order due to confusion about the rule.  Papa Murphy’s also seeks a “brief prospective waiver of 89 days to allow Papa Murphy’s to re-opt in those individuals who had provided written consent to receive text messages prior to October 16, 2013.”
  • On March 22, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-302) seeking comment on the petition.  Comments were due on April 21, 2016 and replies were due on May 6, 2016.

3. 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.

4. 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.

5. 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.

6. 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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