Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

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Yesterday, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order (“Order”). As we previously reported, ACA International filed the first petition for review on the same day the Order was issued. That and subsequent appeals were centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation.  The Joint Petitioners filed their opening brief on November 25, 2015, Rite Aid filed a separate brief the same day that focused on healthcare-related issues, the FCC responded to both briefs on January 15, 2016, and the parties filed final briefs on February 24, 2016. Continue reading

FCC Issues Declaratory Ruling Confirming an Exemption from Certain of the TCPA’s Restrictions for the Federal Government and its Contractors When Acting within Scope of an Agency Relationship

The FCC recently issued a declaratory ruling addressing petitions that had been filed by Broadnet Teleservices LLC (“Broadnet”), National Employment Network Association (“NENA”), and RTI International (“RTI”), each of which sought guidance or clarification on the extent of the TCPA’s governmental exception when a contractor is placing calls or texts pursuant to its work on behalf of the government. Each of the petitioners provide, or have members that provide, calling services on behalf of federal government entities; Broadnet offers teletown hall calling services for state and local governments as well and RTI performs social science survey work for entities such as the Centers for Disease Control and Prevention (CDC). NENA represents providers of employment services to beneficiaries of Social Security Disability Insurance and Supplemental Security Income. These providers are required to contact program-eligible beneficiaries to provide information about potential programs and services.
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Trump Campaign Faces Second, Similar Suit in Same Court

Following on the heels of Plaintiff Joshua Thorne’s TCPA suit, the Donald J. Trump campaign was hit with a second TCPA lawsuit in as many days. See Roberts v. Donald J. Trump For President, Inc., No. 16-4676 (N.D. Ill. Apr. 26, 2016).  The Roberts Complaint concerns the same message (“Reply YES to subscribe to Donald J. Trump for President.  Your subscription will help Make America Great Again!  Msg&data rates may apply.”) and has been assigned to the same judge (Judge John Z. Lee) as the Thorne Complaint.  The Roberts Complaint, however, differs in a couple of key respects.

First, Roberts was filed by different plaintiffs’ counsel.  Second, Roberts includes additional allegations regarding how the Trump campaign purportedly obtained the phone numbers it texted: Roberts claims that he was required to provide his cell phone number to Event Brite when obtaining a free ticket for a March 11, 2016 Trump campaign rally, but that neither Event Brite nor the Trump campaign obtained plaintiff’s prior express consent to text him.

Third, the plaintiff in Roberts also purports to represent a slightly different class: while the purported class in Thorne is defined as nationwide class of all individuals who, during the last four years, did not provide their cell phone numbers to the Trump campaign but nonetheless received a text regarding the campaign, the purported class in Roberts is defined as a nationwide class of all individuals since June 2015 who provided their cell phone numbers to Event Brite to obtain a ticket to attend a Trump-related event and received a text from the Trump campaign despite not providing prior express consent to the Trump campaign.

Trump Campaign Sued In Federal Court in Illinois

Earlier this week, Illinois resident Joshua Thorne filed a purported class action against Donald J. Trump for President, Inc., in the Northern District of Illinois. See Thorne v. Donald J. Trump For President, Inc., No. 16-4603 (N.D. Ill. Apr. 25, 2016).  The suit seeks statutory damages, attorneys’ fees, and injunctive relief for alleged TCPA violations.  Thorne alleges that although he never provided his phone number to the Trump campaign, he recently received a text message from 88022 (an SMS short code leased by the Trump campaign) stating “Reply YES to subscribe to Donald J. Trump for President.  Your subscription will help Make America Great Again!  Msg&data rates may apply.”  Thorne further alleges that the message was sent on behalf of the Trump campaign by Tatango, Inc., which he alleges offers both bulk-messaging software and a free TCPA compliance guide.  Thorne seeks to represent a nationwide class of all individuals who, during the last four years, did not provide their cell phone numbers to the Trump campaign but nonetheless received a text regarding the campaign.  Thorne claims that the Trump campaign sent thousands of the same or similar text, and seeks $500-$1500 on behalf of each class member for each such text.

The Complaint is noteworthy because it is the second TCPA complaint filed in as many months by the same plaintiff’s counsel targeting a political campaign. (See our prior coverage of election-related TCPA issues here).

What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line”

On March 31, 2016, the FCC released a public notice (“Public Notice”) seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Petition”), an attorney who maintains a home-based law practice.  As Bank’s Petition notes, the TCPA includes a number of restrictions that apply to residential lines.  For example, among them, the TCPA provides that “[i]t shall be unlawful for any person . . . to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . .” See 47 U.S.C. § 227(b)(1)(B).  In his Petition, Bank argues that these calling restrictions apply to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber.  The resolution of this question could have wide-reaching implications for telemarketers, who might as a result have another screen to apply to potential calls as to whether a number held out as a business line is actually a residential line as classified by the telephone service provider. Continue reading

Tippecanoe and the TCPA, Too, Two

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

Tippecanoe and the TCPA Too

With election season under way, it bears repeating that candidates for office are not immune from the restrictions imposed by the TCPA. As the FCC’s Enforcement Bureau explained in an advisory that we discussed previously here, while “[p]olitical prerecorded voice messages or autodialed calls—whether live or prerecorded—to most landline telephones are not prohibited, so long as they adhere to the identification requirements” mandated for all prerecorded messages, the “broad prohibition” on calls to cell phones and other specific types of phone numbers (e.g., health care/emergency lines) “covers prerecorded voice and autodialed political calls, including those sent by nonprofit/political organizations.” Candidates (or their supporters) who are not aware of the TCPA (or confused about the difference between the restrictions on informational calls to cellular phones versus such calls to residential landlines and not aware of the difficulties in managing recycled number issues) risk finding their campaign embroiled in litigation, as evidenced by a new TCPA filing last week. Continue reading

Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete

On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.

The Joint Petitioners’ Final Brief

The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading

FCC Seeks Public Comment on Lifetime Petition For Declaratory Ruling or Retroactive Waiver

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.

Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order

On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading