Following up on our March 9 reminder, and just in time for Super Tuesday II, the Federal Communications Commission’s Enforcement Bureau issued an Enforcement Advisory on March 14 titled, “Biennial Reminder for Political Campaigns about Robocall and Text Abuse.” The advisory (similar to past advisories) is a reminder to “political campaigns and calling services that there are clear limits on the use of autodialed calls or texts (known as ‘robocalls’) and prerecorded voice calls.” The advisory summarizes the TCPA’s regulations on (1) calls to cell phones, (2) calls to landlines, (3) identification requirements for prerecorded voice messages, and (4) “line seizure” restrictions. The advisory also includes an “At a Glance” summary of regulations as applied to Political Calls and a series of Frequently Asked Questions with contact information for the Enforcement Bureau for those who have unanswered questions or lingering concerns. Continue reading
In TCPA Blog’s latest Law360 column, contributors Eduardo Guzmán, Michael Daly and Anthony Glosson discuss the Fourth Circuit’s opinion in Lynn v. Monarch Recovery Management Inc. They explain that the opinion has analytical gaps, leaves unanswered questions, and does not mean that calls to residential VoIP-based telephony services should necessarily be treated differently than calls to other residential:
In short, unpublished opinion in Lynn v. Monarch Recovery Management Inc., the United States Court of Appeals for the Fourth Circuit stated that the “call-charged provision” of the TCPA applied to debt collection calls made to a residential VoIP-based line. The plaintiffs’ bar responded by suggesting that the TCPA applies differently to so-called “VoIP calls,” and telemarketing vendors responded by marketing services that scrub all numbers assigned to VoIP carriers — a move that, given VoIP’s increasing popularity, could end up eliminating a substantial percentage of residential numbers. However, a more objective analysis of the opinion and the issues suggests that these reactions may be overstated, if not altogether misplaced.
They go on to explain that predictions about the decision’s consequences may be wrong because it: (1) is unpublished and nonprecedential; (2) involved a highly unusual fact pattern; and (3) has serious gaps in its interpretation of the scope and application of the “call-charged provision.
The FCC’s Consumer and Governmental Affairs Bureau has issued a public notice seeking comment on a December 11, 2015 petition by Lifetime Entertainment Services, LLC (“Lifetime”). The petition asked the FCC to clarify that the TCPA’s limitations on prerecorded calls do not apply to calls by cable operators and networks that merely inform subscribers about content that they are already entitled to watch. In the alternative, Lifetime sought a grant of retroactive waiver for a call that it had allegedly placed to inform subscribers that a reality television program had moved to Lifetime, and was accordingly available under the subscriber’s current plan. Lifetime argued that, because it was not urging the subscriber to make a new purchase, and indeed, provided no information on how to make any purchase, the call should be viewed as informational, not telemarketing. In support of this conclusion, Lifetime cited Sandusky Wellness Center, LLC v. Medco Health Solutions, which deemed informational several faxes that were “not sent with hopes to make a profit.” 788 F.3d 218, 221 (6th Cir. 2015). The FCC has set the deadlines for comments and reply comments on this petition at March 7, 2016 and March 21, 2016, respectively.
The FCC continues to dispose of pending petitions or requests for waiver of its TCPA rules. One slightly unusual request was the petition filed last February by National Grid USA, Inc. (“National Grid”) requesting a limited waiver of section 64.1200(b)(1) of the Commission’s rules to allow it to satisfy its TCPA caller identification requirements by providing a “doing business as” (“DBA”) name it had registered with state utility commissions when placing prerecorded voice calls rather than its legal name. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Declaratory Ruling and/or Waiver submitted by National Grid USA, Inc., CG Docket No. 02-278, filed Feb. 18, 2014 (“National Grid Petition”).
The Eleventh Circuit recently ruled that the TCPA’s prohibition on prerecorded calling applies to wireless numbers that have been reassigned from a consenting subscriber to a new, presumably nonconsenting one, regardless of the caller’s knowledge of the reassignment. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). Currently, the Act permits businesses to place prerecorded telemarketing calls to wireless subscribers with “the prior express consent of the called party,” see 47 U.S.C. § 227(b)(1)(A), but does not specify whether the term “called party” refers to the intended recipient of the call or the actual recipient.