May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership. Continue reading “FCC Commissioner O’Rielly Addresses ACA International – TCPA Changes Afoot”
Faegre Drinker
Articles by Faegre Drinker:
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 “FCC Releases Public Notice on Petition to Eliminate Exceptions to Written Consent Requirement”
Ninth Circuit Rules on Standing, Revocation of Consent
In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading “Ninth Circuit Rules on Standing, Revocation of Consent”
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]
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 “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”
FCC Issues Report and Order Implementing 2015 Bipartisan Budget Act Exemption for Calls Made to Collect on Federally-Owned or -Guaranteed Debt
On August 11, 2016, the FCC released a Report and Order implementing Section 301 of the Bipartisan Budget Act of 2015 (the “Budget Act”), which exempts autodialed and prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States” from the TCPA’s prior express consent requirement. The Budget Act provision also authorizes the FCC to adopt rules to “restrict or limit the number and duration” of any wireless calls made to collect debts owed to or guaranteed by the federal government. Continue reading “FCC Issues Report and Order Implementing 2015 Bipartisan Budget Act Exemption for Calls Made to Collect on Federally-Owned or -Guaranteed Debt”
Mobile App Operator Not Liable Under TCPA
In an important decision applying the FCC’s July 2015 Declaratory Ruling, a district court recently dismissed TCPA claims against Life360, a mobile application operator. See Cour v. Life360, Inc., Case No. 16-cv-00805-TEH (N.D. Cal. July 28, 2016). The decision provides critical guidance as to when users of a mobile app – rather than the mobile app provider – will be deemed to initiate the text messages, for purposes of assessing TCPA compliance. Continue reading “Mobile App Operator Not Liable Under TCPA”
Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request
For some time the FCC’s Chairman, Tom Wheeler, has been calling on wireless and wireline carriers alike to take more aggressive steps to assist consumers in preventing unwelcome or unsolicited calls and spam messages. The FCC’s July 10, 2015 Declaratory Ruling, for example, contained a discussion focused on resolving the question of whether carriers had a legal obligation to transmit all calls without blocking. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd 7961, ¶¶ 152-63 (July 10, 2015). The Declaratory Ruling affirmed that nothing in the Communications Act or FCC rules or orders prohibits carriers from offering or implementing call blocking technologies for those customers who choose to use them. Id. Continue reading “Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request”
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
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.
Continue reading “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”
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. Continue reading “FCC Proposes Rules to Effectuate the TCPA Exception in the Bipartisan Budget Act of 2015 Provisions for Federally-Held Debt”