On September 21, 2015, petitioners ACA International, Sirius XM Radio, Inc., Professional Association for Customer Engagement, Inc., salesforce.com inc. and ExactTarget, Inc., Chamber of Commerce of the United States of America, Consumer Bankers Association, Vibes Media, LLC, Rite Aid Hdqtrs. Corp., and Portfolio Recovery Associates (collectively “Petitioners”) filed an unopposed joint motion for briefing format and schedule in their consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed Sept. 21, 2015).
FCC Issues Citations To Lyft And First National Bank Due To Alleged TCPA Violations
On September 11, the FCC’s Enforcement Bureau issued two similar citations highlighting telemarketing practices by Lyft, Inc. and the First National Bank (FNB). These Citations stated that each entity had violated the TCPA by failing to allow their respective customers to opt out of receiving telemarketing messages. As we previously reported, the Bureau during the summer had alerted PayPal to similar concerns about its subscription agreement. After the warning, PayPal modified its agreement so as to permit PayPal users to opt out of receiving automated telemarketing messages. These recent citations are shots across the bow at other commercial entities with messaging policies that the FCC views as too restrictive.
Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff’s Conclusory ATDS Allegations
The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.
Portfolio Recovery Associates, LLC Joins the Consolidated Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order
On September 8, 2015, Portfolio Recovery Associates, LLC (“PRA”) filed its own petition for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit. PRA states that it participated in the underlying proceedings by submitting comments to ACA International’s Petition for Rulemaking. Id. at 3. PRA contends that while the purpose of the underlying proceedings was to provide clarity to previous interpretations of various TPCA provisions, the Order disregards the TCPA’s language and intent while unlawfully holding callers to unreasonable standards. Id. Specifically, PRA challenges the Order’s: (1) assertion that “equipment can be an ATDS even if it has none of the statutorily required features,” (2) provision allowing a called party to revoke consent at any time through any reasonable means while callers are prohibited from establishing methods for revocation, and (3) provision imposing strict liability for calls made to reassigned numbers after the first call regardless of whether the caller is aware that the number has been reassigned. Id. As relief, PRA asks the DC Circuit to vacate or reverse the unlawful parts of the Order and remand those parts to the FCC for further action consistent with the court’s findings. Id. at 4.
Parties Continue to Challenge the FCC’s July 10, 2015 Declaratory Ruling and Order
On September 4, 2015, both Vibes Media, LLC and Rite Aid Hdqrtrs. Corporation filed petitions for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit. See Vibes Media, LLC v. FCC, No. 15-1311 (D.C. Cir. filed Sept. 4, 2015); see also Rite Aid Hdqtrs. Corp. v. FCC (D.C. Cir. filed Sept. 4, 2015). Both petitions have been added to the consolidated appeal.
CodeBroker, LLC Filed Consent Motion for Voluntary Dismissal of its Petition for Review
Earlier, we reported that CodeBroker, LLC filed a petition for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit. On September 3, 2015, CodeBroker, LLC filed a motion for voluntary dismissal of its pending petition for review. See CodeBroker, LLC Mot. for Voluntary Dismissal, No. 15-1278 (D.C. Cir. filed Sept. 3, 2015).
The Chamber of Commerce of the United States Joins the Consolidated Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order
On September 2, 2015, the Chamber of Commerce of the United States (“Chamber”) filed its own petition for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit. See Chamber of Commerce of the US v. FCC, No. 15-1306 (D.C. Cir. filed Sept. 2, 2015). Chamber challenges: (1) the inclusion of equipment that does not have the present capacity to “store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers” within the scope of an ATDS, (2) the determination that the term “called party” refers to the current subscriber or customary user of the phone instead of the intended recipient of the call, (3) the one-call exemption before imposing strict liability for calls made to reassigned numbers, and (4) the provision that allows a called party to revoke prior express consent at any time through any reasonable means, while callers are prohibited from limiting the manner in which consent may be revoked. Id. at 2-3.
As relief, Chamber asks the DC Circuit to vacate or reverse the unlawful parts of the Order and remand those unlawful parts to the FCC for an order that is consistent with the court’s findings. Id. at 4.
Stay tuned as we continue to provide updates on developments in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.
Two Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order
As anticipated, additional parties continue to join the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. On August 26, 2015, salesforce.com inc. and its wholly-owned subsidiary ExactTarget, Inc. (collectively “Salesforce”) filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Salesforce.com Inc., et al. v. FCC, No. 15-1290 (D.C. Cir. filed Aug. 26, 2015). On September 1, 2015, the Consumer Bankers Association (“CBA”) filed its own petition for review. See Consumer Bankers Assoc. v. FCC, No. 15-1304 (D.C. Cir. filed Sept. 1, 2015).
Continue reading “Two Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order”