Pending TCPA Petitions

The FCC’s TCPA dockets can be among the agency’s most active, with intermittent waves of petitions filed, followed by releases of public notices seeking comments on petitions for declaratory rulings or clarifications of FCC rules. It can be difficult to track down TCPA items in the FCC’s Electronic Comment Filing System. But fear not: the Drinker Biddle TCPA team has put together this tracker chart to help our readers locate pending TCPA petitions and associated public notices. The chart is organized by issue and contains brief summaries of the requests made by petitioners. It does not include petitions for reconsideration of the FCC’s July 2015 omnibus order.

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FCC Releases Two Notices of Inquiry Addressing Reassigned Numbers and Caller ID Spoofing

The FCC released two notices of inquiry (NOIs) related to TCPA issues last week: one on how to better track reassigned numbers, and another on tightening industry wide techniques to discourage Caller ID spoofing, one category of illegal robocalls. Each NOI seeks public comment. Continue reading   »

FCC Denies Petition by Mortgage Bankers Association to Exempt Certain Mortgage Servicing Calls from Prior Express Consent Requirement

On November 15, the FCC’s Consumer and Governmental Affairs Bureau denied a petition by Mortgage Bankers Association (MBA)[1] that sought an exemption from the FCC’s prior express consent requirement for non-telemarketing residential mortgage servicing calls to wireless numbers. In its Order, the Bureau concluded that MBA had failed to show (1) that the calls om question would be free of charge to consumers; and (2) that the parties seeking relief should be able to send non-time-sensitive calls to consumers without their consent.[2]

The Bureau’s Order explained that the TCPA “reflects Congress’ recognition of the potential costs and privacy risks imposed on wireless consumers from the use of autodialer equipment, which can generate large numbers of unwanted calls,” and accordingly, the FCC has generally attempted to balance and accommodate the legitimate business interests of callers in addition to recognized consumer privacy interests.[3] Continue reading   »

DC Circuit Court of Appeals Hears Extended Oral Argument In The Consolidated Appeal

As we previously reported, the United States Court of Appeals for the D.C. Circuit held oral argument this morning in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. The issues before Judges Srinivasan, Pillard, and Edwards were: (1) the definition of an ATDS, particularly the Order’s treatment of the terms “capacity” and “using a random or sequential number generator;” (2) the identity of the “called party” from whom consent must be obtained and the impracticality of the Order’s one-call safe harbor provision; (3) the means by which consent may be revoked; and (4) whether healthcare-related calls should be afforded the same treatment they receive under HIPAA.

Paul Werner from Sheppard, Mullin, Richter & Hampton LLP argued on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day argued on behalf of the remaining joint petitioners, and Scott Noveck argued on behalf of the FCC. Although the argument was scheduled to last only forty minutes, it quickly became apparent that Judges Srinivasan, Pillard, and Edwards had concerns about portions of the Order and numerous questions for both parties. The argument ended up lasting more than two and half hours, the majority of which was devoted to what types of equipment qualify as an ATDS, and whether the one-call safe harbor provision strikes a tenable balance between protecting consumers and protecting callers that have been threatened with potentially annihilating liability for calling numbers in good faith that have been reassigned.

An audio recording of today’s argument is available here.