TCPA Petitions Keep Pouring Into the FCC

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As previously covered in other TCPA blog posts, the FCC maintains a range of TCPA rules addressing certain key elements of telemarketing and even non-telemarketing call activities that can implicate routine interactions between companies and their customers or prospective customers. The proper scope and interpretation of some of these rules continue to be the subject of newly filed petitions for clarification, declaratory ruling or even requests for outright waiver of certain FCC rules. We highlight here several of the more recent additions to the FCC’s already large compliment of pending TCPA petitions.

ACA International filed a petition for rulemaking in late January seeking FCC rule updates or clarifications to dispel the possibility that all predictive dialing technology, regardless of its actual use and configuration, could be deemed to be an automatic telephone dialing system (ATDS). ACA is a trade organization of debt collection companies. (See ACA International Petition.) ACA seeks to have the FCC apply “common sense” interpretations of what constitutes “capability” to function as an ATDS, among other things. The petition asserts that ACA member companies contact consumers exclusively for non-telemarketing purposes. The telephone communications at issue are to facilitate recovery of payment for services rendered that ACA characterizes as informational calls. ACA notes that modern calling technology makes these types of debt collection calls more efficient. However, the ability to utilize technology efficiently is being frustrated with the specter of legal damages by members of the plaintiffs’ bar attempting to invoke broadly worded FCC rule interpretations in situations where a predictive dialer may well not be functioning as an ATDS. ACA argues that for a predictive dialer to be considered an ATDS it must in fact demonstrate that it has the statutory elements of an ATDS to be considered an ATDS. Specifically, ACA argues that present ability to function as an ATDS at the time a call is made should be a limiting factor in any capability analysis and ACA asks the FCC to confirm that interpretation of the statute in its rules.

ACA’s final issue is with the problem it encounters with recycled wireless phone numbers. ACA notes two separate issues, the first is with contacting people who provided a wireless phone number in connection with applying for consumer debt, but who later switch phone numbers and do not notify the vendor so that records can be updated appropriately. As a result of dropping a wireless phone number, calls can be made in error to the party reassigned that cell phone number. ACA seeks FCC adoption of a safe harbor that would shield any non-telemarketing caller from TCPA liability if the caller mistakenly calls a previously appropriate number that is no longer associated with the person being contacted about a debt. The second issue is how ACA members might lawfully approach those parties who previously consented to be contacted but have switched their wireless phone numbers. ACA proposes that because the debtor at the outset provided consent to be contacted about his or her debt, that the individual should be viewed as having provided consent to be contacted on any wireless number in connection with the debt, regardless of whether the wireless contact number for that individual has changed. Comments on this petition are due at the FCC by March 24.

On February 18, 2014, National Grid USA, Inc. filed a petition for expedited declaratory ruling seeking FCC confirmation that a company that has registered with a state corporation commission with its doing business as (d/b/a) name has satisfied FCC rule requirements on proper identification of the calling entity when it uses that d/b/a name in telemarketing. (See National Grid USA Petition.) Specifically, FCC rule section 64.1200(b)(1) requires that when an entity uses an artificial or pre-recorded voice message, it clearly state the identity of the entity responsible for initiating in the call. While the FCC permits use of a company d/b/a name, National Grid is seeking clarification that the rule is also satisfied by use of a d/b/a name that is registered with the appropriate regulatory authority. National Grid provides gas and electricity services to many areas of the northeastern portions of the U.S. These services are provided under the National Grid name, however, there continue to be technical legal corporate names that are maintained for utility regulatory purposes for legacy utility companies under the National Grid umbrella. National Grid uses prerecorded informational calls to update customers about appointments and service notifications, and wants to have the assurance that its decision to identify itself for all customer interfacing communications as National Grid is acceptable. The petition suggests that even if it would comply with the FCC’s rules, use of a non-uniform name could be potentially confusing to the called party. To the extent that the FCC is unwilling to endorse this proposed rule interpretation, National Grid in the alternative requests a rule waiver to cover its particular circumstances. The FCC has placed this petition on public notice, seeking public comment at the end of March through mid-April.

A third petition, that of Crown Mortgage Company, is for a declaratory ruling that “opt-out” notices that FCC rules require on all fax telemarketing be limited only to “unsolicited” faxes. (See Crown Mortgage Petition.) This petition arises from a lawsuit where the parties receiving the faxes at issue, among other arguments, asserted that Crown was liable under FCC rules for failure to place opt-out notifications on solicited faxes. Like several earlier petitioners, Crown argues that the FCC rules on solicited fax disclosures go beyond the scope of the statute, and that no purpose is served by requiring specific opt out language on marketing faxes sent with prior consent. To the extent the FCC determines not to modify its rule, Crown Mortgage nevertheless seeks a retroactive waiver for its “unintentional transmission of solicited faxes which did not contain opt-out language.” Petition at 3.

The FCC has a large collection of TCPA petitions, and many hope that the agency will begin shortly to provide some of the clarifications sought, so that businesses can contact customers for legitimate business purposes without the specter of incurring potential TCPA liability. More petitions may be filed as the number of TCPA lawsuits continue to grow. In the meantime, the continued lack of resolution on key issues in TCPA interpretation and compliance is hamstringing the operations of many companies that routinely have provided information to their customers and who are making decisions about compliance without the benefit of the FCC’s guidance.