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.
Category - "FCC Actions"
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).
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A Busy Summer at the FCC: The Commission Releases Its Fax Waiver Order
On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv). The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.
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Web Messaging Platforms After The FCC’s Declaratory Ruling
While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).
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CodeBroker, LLC Files Additional Challenge to the FCC’s July 10, 2015 Declaratory Ruling and Order
On August 14, 2015, CodeBroker, LLC (“CodeBroker”) 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.
This petition was consolidated with the previous petitions filed by ACA International, PACE, and Sirius XM Radio, Inc. on August 17, 2015. CodeBroker challenges: (1) the FCC’s determination that prior express consent may be revoked through “any reasonable means,” (2) the FCC’s treatment of prior express written consent with “respect to its requirement that callers obtain new prior express written consent for each call or text message made to a wireless number, and (3) the FCC’s interpretation of the term “called party” as the current subscriber or customary user of the phone instead of the intended recipient of the call.” Id. at 2-3.
CodeBroker asks the DC Circuit to vacate the Order or hold unlawful: (1) the FCC’s treatment of text messages sent to reassigned wireless telephone numbers, (2) the FCC’s determination that prior express consent may be revoked by “any reasonable means,” (3) the FCC’s determination that callers “seek prior express written consent for each call or text message sent to a wireless number,” and (4) the FCC’s treatment of reassigned numbers and compel the FCC to define “called party” as the intended recipient of the call or text and establish a viable safe harbor for text messages sent to reassigned numbers. Id. at 3-4.
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.
PACE and Sirius XM File Statements of Issues in the Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order
On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.