Pending TCPA Petitions

As 2015 begins, we thought that providing a roundup of and the links to pending FCC TCPA petitions might be useful. The list includes most pending petitions filed since the FCC’s revised TCPA rules came into effect, with the exclusion of the many “blast fax” petitions for retroactive relief. We have grouped the petitions by primary subject matter (consent, ATDS definition, or other). We will update this list periodically.

A. Petitions Relating to “Prior Express Written Consent”

1. American Association of Healthcare Administrative Management

Petition
Public Notice
Summary: The American Association of Healthcare Administrative Management (AAHAM) petition concerns the applicability of the TCPA to calls placed by or on behalf of healthcare providers. The FCC seeks comment on AAHAM’s request that the FCC confirm that the provision of a telephone number by an individual to a healthcare provider constitutes “prior express consent” for non-telemarketing, healthcare calls to that telephone number by or on behalf of the healthcare provider and its business associates. In addition, AAHAM asks the FCC to exempt from the TCPA’s “prior express consent” requirement certain non-telemarketing, healthcare calls that are “not charged to the called party.”
Timing: Petition filed October 21, 2014. Comments are due January 16, 2015. Reply comments are due February 2, 2015.

2. American Bankers Association

Petition
Summary: The American Bankers Association (ABA) petition requests that the FCC exempt certain time-sensitive informational calls for alerts to consumers concerning fraud or identity theft or data security breach notifications from the TCPA’s prior express consent requirement for automated calls to mobile devices.
Public Notice
Summary: The FCC seeks comment on the proposed exemption from “certain time-sensitive informational calls, placed without charge to the called parties, from the restrictions on automated calls to mobile devices.” Specifically, the ABA requests the FCC to exempt automated calls and text message alerts to wireless telephone numbers concerning: (1) transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers’ personal information; (3) steps consumers can take to prevent or remedy harm caused by data security breaches (collectively referred to as remediation messages); and (4) money transfer notifications and notifications of actions needed to arrange for receipt of pending money transfers. If exempted, these automated calls and text alerts would only be sent to the phone number of the consumer to whom the alert is directed and would be without charge and would also not include any solicitation or telemarketing information.
Timing: Petition filed October 14, 2014; comment period closed.

3. Rubio’s Restaurant, Inc.

Petition
Summary: Rubio’s Restaurant uses a remote messaging system to send food safety alerts to its employees’ mobile phones. When an employee’s wireless phone number is reassigned without Rubio’s knowledge, the messaging system continues sending alerts to the reassigned wireless number. The petition asks the FCC to clarify the applicability of the TCPA to the “dissemination of certain non-marketing information to the wireless numbers of a company’s employees…and for which valid ‘prior express consent’ has been obtained from its employees, but have subsequently been reassigned (without the knowledge of the calling party) to another cellular phone subscriber.”
Public Notice
Summary: The FCC seeks comment on Rubio’s request to confirm “callers who obtain ‘prior express consent’ from their employees are not liable under the TCPA for disseminating informational, non-telemarketing alerts, to telephone numbers that have been reassigned without the caller’s knowledge.” Rubio’s asks the FCC to “consider adding an affirmative, bad-faith defense that vitiates liability upon a showing that the called party purposefully and reasonably waited to notify the calling party of the reassignment in order [to] accrue statutory penalties.” Rubio’s also requests the FCC to confirm the TCPA does not apply to “intra-company messaging systems which are never aimed at consumers and never intended to reach the public.”
Timing: Petition filed August 11, 2014; comment period closed.

4. Santander Consumer USA, Inc.

Petition
Summary: Prior express consent to receive non-telemarketing calls or text messages to cell phones sent using an ATDS and/or artificial or prerecorded voice message cannot be revoked.
Public Notice
Summary: The FCC seeks comment on Santander’s argument that neither the TCPA nor the Commission’s prior rulings explicitly provide a right to revoke “prior express consent” and the lack of such an explicit statement means that consumers have no right to revoke prior express consent to receive non-telemarketing calls. In the alternative, if the FCC determines the TCPA includes the right to revoke “prior express consent” to receive such non-telemarketing communications, then Santander requests clarification that the “caller may require consumers to use one or more of the following methods to effectively revoke ‘prior express consent’: (1) in writing at the mailing address designated by the caller; (2) by email to the email address designated by the caller; (3) by text message sent to the telephone number designated by the caller; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology.”
Timing: Petition filed July 10, 2014; comment period closed.

5. Stage Stores, Inc.

Petition
Summary: Stage Stores asks the FCC to clarity the applicability of the TCPA to a marketing text message sent to a wireless telephone number for which the caller obtained prior express consent but where the wireless number has been reassigned from the consenting consumer to another person without the caller receiving notice or having knowledge of the change.
Public Notice
Summary: The FCC seeks comment on the applicability of the TCPA in relation to reassigned wireless numbers. Stage Stores claims there should be an exception to, or a safe harbor from, liability in such instances, “provided the caller updates its records and ceases calls to that wireless number within a reasonable time period after being informed that the number has been reassigned.”
Timing: Petition filed June 3, 2014; comment period closed.

6. United Healthcare Services, Inc.

Petition
Summary: United Healthcare Services, Inc. (United) seeks clarification on the applicability of the TCPA to informational, nontelemarketing calls, especially healthcare-related calls to telephone numbers that have been reassigned from one wireless subscriber to another, unbeknownst to the calling party.
Public Notice
Summary: The FCC seeks comment on United’s request of the clarifying the applicability of the TCPA to “informational, nontelemarketing autodialed and prerecorded calls to wireless numbers for which valid prior express consent has been obtained but which, unbeknownst to the calling party, have subsequently been reassigned from one wireless subscriber to another.” United states it obtains prior express consent before placing informational, healthcare-related calls to an individual’s wireless telephone number using an automatic telephone dialing system or an artificial or prerecorded voice. However, the wireless numbers are sometimes reassigned from one subscriber to another, without United’s knowledge, so the corporation asks the FCC to clarity parties are not liable under the TCPA when this occurs.
Timing: filed January 16, 2014; comment period closed.

7. Retail Industry Leaders Association

Petition
Summary: The Retail Industry Leaders Association (RILA) describes on-demand text service as providing one-time replies to consumer requests for offers via text message. RILA requests the FCC clarify that the requirement for prior written consent to receive text messages does not apply to on-demand texts because the texts provide information specifically requested by the consumer and do not contain any undesired marketing material.
Public Notice
Summary: The FCC seeks comment on RILA’s assertion that TCPA does not apply to on-demand text service because these communications are: (1) initiated by the consumer, not a telemarketer; (2) isolated, one-time messages sent immediately in response to a consumer’s specific request; and (3) contain only the specific information requested by the consumer. RILA states that application of the prior written consent rule in this limited context is “inconsistent with the Congressional intent not to ‘desired or expected’ communications between consumers and businesses.”
Timing: Petition filed December 30, 2013; comment period closed.

8. Coalition of Mobile Engagement Providers

Petition
Summary: The Coalition of Mobile Engagement Providers (Coalition) seeks clarification that the revised TCPA rules do not “nullify those written express consents already provided by consumers” before the effective date of the rules. The Coalition asks the FCC to clarify that existing customers need not take additional steps to continue receiving the requested communications.
Public Notice
Summary: The FCC seeks comment specifically on the Coalition’s request that the Commission clarify that the revised forms of written consent are applicable only to new customers and therefore mobile marketers need not take additional steps to obtain the revised forms of written consent from existing customers who have already provided express written consent under the previous rules that does not meet the standards of the revised rules.
Timing: Petition filed October 17, 2013; comment period closed.

9. Direct Marketing Association

Petition
Summary: The Direct Marketing Association (DMA) states that the new TCPA rules “require disclosure, informing consumers, that sales are not conditioned on consent and that the seller is using an automatic telephone dialing system in connection with marketers[’] existing written consent agreements.” The DMA argues that, while the FCC “stated that its primary goal in revising [these TCPA rules] was to make [its rules] consistent with those of the Federal Trade Commission (FTC),” the new rule departs from the FTC’s formulation. The DMA maintains that the FCC’s rule “requires that a marketer affirmatively disclose to its customer that it is not acting to condition sale on the written agreement.” The DMA asserts that reliance on previously obtained consents that fail to make the exact disclosures specified in Sections 64.1200(f)(8)(i)(A) and (B) of the FCC’s rules could expose marketers to regulatory sanctions and lawsuits for failure to make the specified disclosure, “even though the previously obtained consent otherwise complies with the written consent requirements and does not violate the FTC companion rule.” Therefore, the DMA requests the FCC to forbear from enforcing, in regard to existing written agreements or consents, Sections 64.1200(f)(8)(i)(A) and (B) of the FCC’s rules.
Public Notice
Timing: Petition filed 17, 2013; comment period closed.

B. Petitions Relating to ATDS Definition

1. Milton H. Fried, Jr. and Richard Evans

Petition
Summary: Fried and Evans ask the FCC to clarify whether certain equipment constitutes an “automatic telephone dialing system.”
Public Notice
Summary: The petition brings before the FCC a primary jurisdiction referral from the United States District Court for the Southern District of Texas. The FCC seeks comment “whether certain equipment, individually or combined, used to transmit text messages constitutes an “automatic telephone dialing system.”
Timing: Petition filed May 27, 2014; comment period closed.

2. TextMe, Inc.

Petition
Summary: TextMe provides a free mobile telephone application that enables users to send and receive non-commercial texts messages to or from personal contacts in the United States and allows the receipt of free texts and voice calls by TextMe users. The petition asks the FCC to clarify certain aspects of the TCPA, specifically including, that the statutory definition “capacity” encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered.
Public Notice
Summary: The FCC seeks comment on TextMe’s declaratory ruling seeking (1) to clarify the meaning of the term “capacity” as used in the TCPA’s definition of “automatic telephone dialing system”; (2) to clarify that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA; and (3) alternatively, to clarify that third party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.
Timing: Petition filed March 18, 2014; comment period closed.

3. ACA International

Petition
Summary: ACA urges the FCC to: (1) clarify not all predictive dialers are categorically autodialers; (2) define “capacity” under the TCPA to mean present ability; (3) clarify that prior express consent attaches to the person incurring a debt, not the specific telephone number provided by the debtor at the time a debt was incurred, and (4) establish a safe harbor for autodialed “wrong number” non-telemarketing calls to wireless numbers.
Public Notice
Timing: Petition filed January 31, 2014; comment period closed.

4. Glide Talk, Ltd.

Petition
Summary: Glide Talk describes its video messaging service application (Glide App) that can be used on certain mobile devices to enable communications through video messaging. Glide Talk states that Glide App does not have the capacity to generate random or sequential numbers and should not be deemed an “automatic telephone dialing system” (autodialer) under the TCPA’s definition. Glide Talk requests the FCC to clarify that the TCPA’s restrictions on the use of autodialers to call wireless numbers applies only to equipment that could, at the time of the call, be used to store or generate sequential or randomized telephone numbers. Glide Talk additionally argues that, even if the equipment used by the Glide App to generate text messages is characterized as autodialing equipment, text messages sent by the application’s user are not initiated by Glide Talk, and it should not be deemed the responsible party for violations of the TCPA. Additionally, Glide Talk contends that the FCC should confirm that the provision of a contact’s phone number by a consumer constitutes prior consent to be sent a text message from the Glide App user. In the alternative, Glide Talk requests the FCC grant a retroactive waiver or exempt the Glide App text messages from the TCPA’s rules.
Public Notice
Summary: The FCC seeks comment on the issues raised in the petition.
Timing: Petition filed October 28, 2013; comment period closed.

5. Professional Association for Customer Engagement

Petition
Summary: The Professional Association for Customer Engagement (PACE) asks the FCC to clarify: (1) a system is not an automatic telephone dialing system unless it has the capacity to, inter alia, dial numbers without human intervention, regardless of whether a call is initiated by entering ten digits of a telephone number or by a one-click dialing method; and (2) a system’s “capacity” is limited to what it is capable of doing, without further modification, at the time the call is placed. In the alternative, PACE requests an Expedited Rulemaking should the Commission disagree that a Declaratory Ruling is appropriate.
Public Notice
Summary: The FCC seeks comment on PACE’s petition, including whether declaratory ruling or rulemaking is the appropriate type of proceeding in which to consider the merits of its arguments.
Timing: Petition filed October 18, 2013; comment period closed.

C. Other Petitions

1. RTI International

Petition
Summary: RTI International asks the FCC to clarify the TCPA does not apply to government research survey calls.
Public Notice
Summary: The FCC seeks comment on RTI’s argument that the TCPA only restricts calling activities for a “person,” and the term “person” as defined in the Communications Act does not include the United States. In addition, Congress separately defined the term “United States” in the Communications Act and the regulations implementing the TCPA, which apply to a “person” or “entity,” similarly exclude the United States. Furthermore, RTI contends the TCPA’s legislative history confirms Congress did not intend to restrict federal government research survey calls under the TCPA or to prohibit calls made by or on behalf of the federal government. RTI further notes that restricting research survey calls that it makes on behalf of federal government agencies would limit the ability of those agencies to perform their statutorily mandated functions.
Timing: Petition filed September 29, 2014. Comments are due December 23, 2014; reply comments are due January 12, 2015.

2. Consumer Bankers Association

Petition
Summary: The Consumer Bankers Association (CBA) asks the FCC to declare that “called party,” for purposes of the TCPA restrictions on certain automated calls, including prerecorded voice and text messages, placed to mobile telephone numbers, refers only to the “intended recipient” of the call.
Public Notice
Summary: The FCC seeks comment on CBA’s assertion,“[i]f a caller is liable for obtaining the consent of persons, such as holders of reassigned numbers, whose identities cannot be ascertained before calls are placed, then complete compliance with the prior express consent requirement is impossible.” CBA notes its members “engage in a wide range of informational, non-marketing communications with their customers, serving various beneficial purposes from mitigating fraud to encouraging money management. In conformance with state and federal law, [its] members send data security breach notifications and place verification calls, including prerecorded voice and text messages, to consumers who have requested fraud alerts on their credit reports.”
Timing: Petition filed September 19, 2014; comment period closed.

3. National Association of Attorneys General

Petition
Summary: The National Association of Attorneys General wrote a letter “on behalf of the millions of Americans regularly receiving unwanted and harassing telemarketing calls” and signed by thirty-nine Attorneys General asking for the FCC’s opinion about the legality of call-blocking technology.
Public Notice
Summary: The FCC seeks comment on three issues identified by the Attorneys General: (1) legal and regulatory prohibitions, if any, that prevent telephone carriers from implementing call-blocking technology, (2) whether telephone carriers can legally block certain types of calls at a customer’s request if technologically able to identify incoming calls as originating from a telemarketer, and (3) whether the description of the FCC’s position as “strict oversight in ensuring the unimpeded delivery of telecommunications traffic” is accurate, and the basis for the FCC’s claim that telephone carriers may not “block, choke, reduce or restrict telecommunications traffic in any way.”The FCC notes in the Public Notice that the Commission historically has prohibited call-blocking technology but seeks comment on existing legal barriers that prevent carriers from implementing call-blocking technology and “whether there are additional sources of Commission authority to prohibit call blocking [other than abusive or anticompetitive reasons], and on the scope of that authority.” The FCC also asks commenters to address “whether and to what extent [its] prior precedent and applicable statutory provisions regarding call-blocking applies to call-blocking technologies now on the market or under development” and requests detailed information on “what call-blocking technologies are available or under development in the United States and internationally.” Finally, the Public Notice asks how the FCC should “reconcile the obligation of voice providers to complete calls with protecting consumers from unwanted calls” under the TCPA.
Timing: Letter dated September 9, 2014. Comment date extended; comments are due January 23, 2015, and reply comments are due February 9, 2015.

4. National Employment Network Association

Petition
Summary: The National Employment Network Association (NENA), which represents more than 650 providers of employment services to Social Security beneficiaries, requests the FCC clarify that, in certain limited circumstances, a long-standing relationship with a federal agency logically implies consent to receive autodialed and prerecorded non-telemarketing calls and text messages under the TCPA from federal government contractors.
Public Notice
Summary: The FCC seeks comment on NENA’s claim (as contextualized in the Public Notice, the Social Security Administration’s Ticket to Work” program that employment networks provide outreach to assist federal disability beneficiaries to return to work), that “’a long-standing relationship’ with a federal agency ‘logically implies’ consent to receive autodialed and prerecorded non-telemarketing calls and text messages under the TCPA, and that such consent includes calls can be made through a public or private intermediary or associated third party that ‘stands in the shoes’ of the federal government.” NENA contends it is in the public interest to use an autodialer to make calls because it is the most cost-effective means of disseminating non-commercial information as mandated by law and other means of contact are not timely or cost effective.
Timing: Petition filed August 5, 2014; comment period closed.

5. VoAPPs, Inc.

Petition
Summary: VoAPPs requests that the FCC clarify the applicability of the TCPA to its voicemail delivery system.
Public Notice
Summary: The FCC seeks comment on the assertion that the delivery of a voice message directly to a voicemail box through its technology does not constitute a call subject to TCPA prohibitions on ATDS or artificial or prerecorded voice. Alternatively, VoApps requests an exemption for its voicemail messages because delivery of its messages does not involve a service for which the called party is charged for the call.
Timing: Petition filed July 31, 2014; comment period closed.

6. Vincent Lucas

Petition
Summary: Lucas seeks clarification of vicarious liability under the TCPA. He asks the FCC to declare a person is vicariously or contributorily liable “if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates the TCPA.”
Public Notice
Summary: The FCC seeks comment on Lucas’s claim that the FCC has the authority to determine vicarious liability under the TCPA, and such liability applies to those who assist telemarketers in violating the TCPA. Lucas asserts the FCC can do so without a separate rulemaking process.
Timing: Petition filed June 18, 2014; comment period closed.

7. National Grid USA, Inc.

Petition
Summary: National Grid requests the FCC confirm that a “doing business as” (d/b/a) name registered with the state corporation commission (or comparable regulatory authority) satisfies the caller identification requirements for artificial or prerecorded voice calls pursuant to the FCC’s rules.
Public Notice
Summary: The FCC seeks comment on National Grid’s claim that a registered d/b/a name satisfies the intent of the rule to ensure that callers are able to identify the calling party. Alternatively, National Grid seeks a waiver to allow it to use a d/b/a name registered with a state corporation commission when making prerecorded calls.
Timing: Petition filed Feb. 18, 2014; comment period closed.

8. Acurian, Inc.

Petition
Summary: Acurian, Inc. requests the FCC clarify a telephone call to a residential landline seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on prerecorded calls enacted as part of the TCPA.
Public Notice
Summary: Acurian asserts its calls to residential landlines are not placed for a commercial purpose but with the purpose to match potential qualified candidates with clinical pharmaceutical trials. It also notes that its requested clarification ensures the regulation of prerecorded calls is constitutional, as the corporation claims a restriction on its calls would not survive First Amendment review.
Timing: Petition filed February 5, 2014; comment period closed.