On December 2nd, the National Association of Chain Drug Stores, Inc. (“NACDS”) submitted an amicus brief in support of member organization and petitioner Rite Aid in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). We reported earlier that Rite Aid filed its opening brief focusing on the healthcare-related portions of the Order on November 25th, the same day the joint petitioners filed their opening brief. The NACDS notes that it also supports the joint petitioners’ arguments related to reassigned numbers, automatic telephone dialing systems, and revocation of consent but submitted a separate amicus brief to address the impact of the Order on critical patient healthcare notifications. Brief at 2 n.1.
Category - "FCC Actions"
Rite Aid Files Opening Brief in Consolidated Appeal of FCC’s TCPA Order
On November 25th, petitioner Rite Aid Hdqrtrs. Corp. (“Rite Aid”) filed its opening brief in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). Although Rite Aid supports the opening brief filed by the joint petitioners on the same day, it obtained permission to file a short separate brief focusing on the healthcare-related portions of the Order. (Whereas the joint petitioners’ opening brief was limited to 14,000 words, Rite Aid’s opening brief was limited to 2,500 words.)
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Joint Petitioners File Initial Brief in Consolidated Appeal of FCC’s TCPA Order
On November 25th, joint petitioners ACA International, Sirius XM, PACE, salesforce.com, ExactTarget, Consumer Bankers Association, U.S. Chamber of Commerce, Vibes Media, and Portfolio Recovery Associates (“Petitioners”), filed their opening brief in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir. Nov. 25, 2015). Rite Aid filed a separate opening brief that we will address in a subsequent post
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National Grid’s Limited Waiver of Caller Identification Requirements Granted by the FCC
The FCC continues to dispose of pending petitions or requests for waiver of its TCPA rules. One slightly unusual request was the petition filed last February by National Grid USA, Inc. (“National Grid”) requesting a limited waiver of section 64.1200(b)(1) of the Commission’s rules to allow it to satisfy its TCPA caller identification requirements by providing a “doing business as” (“DBA”) name it had registered with state utility commissions when placing prerecorded voice calls rather than its legal name. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Declaratory Ruling and/or Waiver submitted by National Grid USA, Inc., CG Docket No. 02-278, filed Feb. 18, 2014 (“National Grid Petition”).
Plaintiffs’ Firms Ask FCC to Vacate 117 Retroactive Waivers
Plaintiffs’ firms recently filed six different applications for review of the Consumer and Governmental Affairs Bureau’s Order granting 117 petitions for retroactive waivers of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). Because the deadline for filing a petition for reconsideration pursuant to 47 C.F.R. § 1.429 had passed, several firms have tried to seek reconsideration by filing applications for review pursuant to 47 C.F.R. § 1.115.
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Petitioners Coordinate Efforts in Consolidated Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order
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.
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).