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

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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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The Rise Of The Professional TCPA Plaintiff

Filing TCPA actions has become a form of sport for certain plaintiffs. In TCPA Blog’s latest Law360 column, Seamus Duffy, Mike McTigue, Mike Daly, Meredith Slawe and Dan Brewer address the manufacturing of TCPA claims, which came to a head in a recent case involving an unabashed professional plaintiff who purchased at least 35 cellphones and numbers with the sole purpose of receiving calls to recycled numbers and then filing suit and cashing in. The article notes the growing use (and abuse) of the TCPA by such plaintiffs:
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Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses

U.S. Senator John Thune (R-S.D.), Chairman of the Senate Committee on Commerce, Science, and Transportation, convened a full committee hearing yesterday titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.”  Witnesses at the two-hour hearing included the Attorney General of Indiana and representatives of the U.S. Chamber Institute of Legal Reform, the National Consumer Law Center, and the American Association of Healthcare Administrative Management.  Chairman Thune opened the hearing with the following observations: Continue reading

Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages

Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III.

The Facts

Spokeo is a search engine that provides information on people (for example age, address, phone number, and occupational and marital status) based on computerized searches in various databases. Plaintiff Thomas Robins filed suit against Spokeo because he learned (he did not allege how) that it had reported (he did not allege to whom) that he was in his fifties, employed, married, and affluent. However, Robins alleged that he is in fact younger, unemployed, unmarried, and of modest means. Opinion at 4. Robins alleged that these inaccuracies resulted from various violations of the Fair Credit Reporting Act, which requires among other things the use of “reasonable procedures to assure maximum possible accuracy of” consumer reports, 15 U.S.C. § 1681e(b), and the posting of toll-free numbers that consumers can call to request reports. See id. § 1681j(a). Robins also alleged that those violations were “willful,” which he hoped would entitle him—and every other member of a putative class—to statutory damages plus fees and costs. See id. § 1681n(a). The District Court dismissed his claim due to the lack of an injury-in-fact but the Ninth Circuit reversed, reasoning that a “violation of a statutory right is usually sufficient injury in fact to confer standing.” Opinion at 5. The Supreme Court granted certiorari in order to answer that question for itself.

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FCC Proposes Rules to Effectuate the TCPA Exception in the Bipartisan Budget Act of 2015 Provisions for Federally-Held Debt

Last week, the FCC released a notice of proposed rulemaking (“NPRM”) detailing its proposals to implement the provisions of the 2015 Bipartisan Budget Act that allow greater flexibility under the TCPA for calls placed relating to federally-held debt.  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Notice of Proposed Rulemaking (May 06, 2016). This Act specifically “excepts from the Telephone Consumer Protection Act’s consent requirement robocalls made solely to collect a debt owed to or guaranteed by the United States.” Id. at ¶ 1. The Act set a nine-month deadline for the FCC to adopt rules implementing this exception, which gives the agency until August to adopt these rules. With this NPRM, the FCC sought to “balance the importance of collecting debt owed to the United States and the consumer protections inherent in the TCPA.” Id. The FCC’s rulemaking proceeding will apply to calls and text messages. As has been the case with a number of TCPA matters over the last few years, the FCC Commissioners were deeply divided on the proposals contained in the NPRM.

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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).

Currently Pending FCC Petitions in TCPA Matters

With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC.  The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding.

Nonpublic draft FCC orders on the following petitions are currently on circulation before the Commission for a vote:

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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