FCC Releases Public Notice on Petition to Eliminate Exceptions to Written Consent Requirement

On February 8, 2017, the FCC issued a public notice seeking comment on a petition for rulemaking and declaratory ruling (the “Petition”) filed by Craig Moskowitz and Craig Cunningham (the “Petitioners”). The Petition seeks the initiation of a rulemaking to overturn the FCC’s allegedly “improper interpretation that ‘prior express consent’ includes implied consent resulting from a party’s providing a telephone number to the caller.” Continue reading   »

The Tide Is Turning: Ajit Pai Chosen To Head FCC

On July 10, 2015, a sharply divided FCC issued a Declaratory Ruling and Order (the “July 2015 Order”) that missed the mark. The July 2015 Order purported to expand the scope of the TCPA through its unsupported redefinition of an “automatic telephone dialing system,” create an untenable one call “safe harbor” for reassigned number liability, and permit parties to revoke consent through any “reasonable” means. The July 2015 Order is presently on appeal in the D.C. Circuit, and there is hope that the Court, which heard argument on October 19, 2016, will undo its pronouncements, which have had broad implications for businesses that place calls and send text messages to consumers for telemarketing or informational purposes. These companies have faced potentially crushing liability through a huge wave of TCPA actions (both proposed class actions and individual claims) as well as pre-suit demands, many of which have been initiated by opportunistic plaintiffs’ lawyers and serial plaintiffs. 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   »

D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order

On November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. Our prior posts on the appeal can be found here, here, and here. The audio recording of the argument is available here. Continue reading   »

Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal

The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the consolidated appeal of the FCC’s July 10, 2015 TCPA Declaratory Ruling and Order on Wednesday, October 19th. The panel was composed of Judges Sri Srinivasan, Cornelia T.L. Pillard and Harry T. Edwards. The argument was well attended and lasted nearly three hours – much longer than the forty minutes for which it had been scheduled. The panel’s questions primarily focused on the definition of an ATDS, the identity of the “called party” from whom consent must be obtained, the impracticality of the FCC’s one-call safe harbor, and the methods by which consumers may revoke consent. A small portion of the argument was devoted to healthcare-related messages. Continue reading   »

Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order

On October 13, 2016, counsel for class action plaintiffs (“Plaintiff Petitioners”) in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, filed a notice of supplemental authority with the United States Court of Appeals for the D.C. Circuit, arguing that the court’s recent decision in PHH Corp. v. CFPB, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), supports their arguments that the FCC’s October 2014 Anda Order (the “Anda Order”) “constitutes an impermissible retroactive legislative or adjudicatory rule” and violates separation of powers principles. 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.

Oral Argument In The Consolidated Appeal To Be Heard This Upcoming Wednesday

As we previously reported, 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. Each side has been allotted twenty minutes of oral argument time, with petitioner Rite Aid arguing for five minutes on the healthcare-related issues of the Order, and the rest of the petitioners arguing fifteen minutes. Paul Werner from Sheppard, Mullin, Richter & Hampton LLP is scheduled to argue on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day is scheduled to argue on behalf of the remaining joint petitioners, and Scott Noveck is scheduled to argue on behalf of the FCC. The argument will be heard before Judges Srinivasan, Pillard, and Edwards.

For those planning on attending, doors open around 9:10 a.m. and entry into the courtroom is on a first-come, first-served basis. Instructions on attendance can be found here. We plan to be in attendance and report back after the oral argument.

The New York Police Department’s Use of Wireless Emergency Alert System to Seek Help in Locating Bombing Suspect: A New Use for these Alerts

Following an explosion in September in the Chelsea neighborhood of New York City and discovery of other unexploded homemade bomb devices, the New York Police Department identified a suspect, Ahmad Khan Rahami, who was sought in connection with the bombings and attempted bombings in Manhattan and New Jersey. For the first time ever in this circumstance, the NYPD used a communications tool initially known as the “Commercial Mobile Alert System” (CMAS) and later renamed to be “Wireless Emergency Alerts” or WEA to function as an electronic wanted poster. This was in contrast to more familiar uses of this emergency communications capability, such as the localized transmission of severe weather advisories or Amber Alerts. Under FCC rules, these alerts are originated by authorized federal, state and local governments, and they currently are used to geographically target 90-character messages that fall into three distinct categories: Presidential, Imminent Threat, and Amber Alerts. Continue reading   »

Parties Seek Twenty Minutes Of Oral Argument In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the petitioners in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order filed an unopposed motion seeking twenty minutes of oral argument for each side. As we previously reported, 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.

In requesting twenty minutes of oral argument time, the petitioners note the importance and the complexity of the issues raised in their petitions for review. Namely, “the kinds of equipment that fall within the [TCPA’s] restrictions on calls to wireless numbers from ‘automatic telephone dialing systems,” “the scope of liability for those who call numbers that (unbeknownst to them) have been reassigned from one, consenting consumer to another, non-consenting one,” “the methods by which consumers may revoke consent[,]” and the types of “informational healthcare-related” calls that fall outside of the TCPA’s scope.  As such, the petitioners request that each side be allotted twenty minutes of oral argument time with petitioner Rite Aid arguing five minutes on the healthcare-related issues of the Order and the rest of the petitioners arguing fifteen minutes.

We will continue to monitor the pending appeal and report on any significant developments before and after oral argument on October 19th.