On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading “Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order”
Category - "FCC Actions"
Briefing continues in cross appeals of Anda Order
In its October 2014 Final Order (the “Anda Order”), the Federal Communications Commission found that it had the statutory authority to regulate solicited faxes by promulgating a rule that requires an opt-out notice on all such faxes, but also found that because of reasonable confusion surrounding the regulation, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without the opt-out notice. Continue reading “Briefing continues in cross appeals of Anda Order”
The Big Chill: How The FCC’s Reading Of The TCPA Violates The First Amendment And Demands The Impossible
As the defense bar’s preeminent public resource on TCPA litigation and regulation, TCPA Blog has been invited to contribute a regular column to Law360. In the first such column, Bradley Andreozzi, Michael Daly, and Justin Kay discuss how the FCC’s interpretations of the TCPA violate the First Amendment rights. They write:
For an agency charged with regulating communications, the Federal Communications Commission has shown itself to be remarkably indifferent to First Amendment rights. In its recent brief in the consolidated appeal from its July 2015 omnibus ruling on the Telephone Consumer Protection Act, the FCC blandly assured the D.C. Circuit that “[e]very court” has held that the TCPA’s restrictions “easily pass muster under the First Amendment.” FCC Brief at 73-74. But it all but ignored that, rather than “directly challenge the TCPA’s constitutionality,” the petitioners in that appeal challenge the FCC’s “interpretations of the statute.” Id. at 72-73. On that issue, the D.C. Circuit will be writing on a clean slate, and the First Amendment challenges are serious.
They then highlight three serious First Amendment concerns, specifically that the FCC’s: (1) healthcare exemption restricts necessary speech; (2) recycled numbers ruling demands the impossible; and (3) ATDS interpretation is unconstitutionally vague.
FCC Releases Order Denying Club Texting’s 2009 Petition on Text Broadcaster Liability Standards
On January 11, 2016, the FCC’s Consumer and Governmental Affairs Bureau (“Bureau”) acted on a petition filed in 2009, and denied Club Texting, Inc.’s (“Club Texting”) petition for declaratory ruling, which asked the FCC to clarify that text broadcasters are subject to the same TCPA liability standard as that applied to fax broadcasters. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petition of Club Texting, Inc. for Declaratory Ruling, Order, CG Docket 02-278 (Jan. 11, 2016) (“Jan. 11 Order”); see also Club Texting, Inc. Petition for Declaratory Ruling that Text Broadcasters Are Not “Senders of Text Messages Under § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278 (Apr. 25, 2009) (“Club Texting Petition”).
NACDS Files Amicus Brief in Support of Petitioner Rite Aid in Consolidated Appeal of FCC’s TCPA Order
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.
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.)
Continue reading “Rite Aid Files Opening Brief in Consolidated Appeal of FCC’s TCPA Order”
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
Continue reading “Joint Petitioners File Initial Brief in Consolidated Appeal of FCC’s TCPA Order”
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.
Continue reading “Plaintiffs’ Firms Ask FCC to Vacate 117 Retroactive Waivers”
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).