On July 25, 2014, the FCC issued a Public Notice seeking comment on five petitions, filed by American Caresource Holdings, Inc. (“ACH”), CARFAX, Inc.(“CARFAX”), UnitedHealth Group, Inc. (“UnitedHealth”), MedLearning, Inc. and Medica, Inc. (“Medica”), and Merck and Company, Inc.(“Merck”) (collectively, the “Petitioners”) requesting a declaratory ruling and/or a waiver of section 64.1200 (a)(4)(iv) of the FCC’s rules. This rule requires certain fax advertisements to include an opt-out notice. ((See 47 C.F.R. § 64.1200 (a)(4)(iv).)) Comments in response to this Public Notice must be filed by August 8, 2014; reply comments are due August 15, 2014.
Category - "FCC Actions"
Twitter Sued in TCPA Class Action for Messaging Recycled Wireless Numbers
Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).
The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.
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FCC Denies Petition To Change Its Rules So That It Could Preside Over Class Actions
The FCC recently denied a petition that had asked it to amend its rules so that it could preside over class actions. Although the Petition did not mention the TCPA, it would not have taken long for plaintiffs to create a new front of TCPA litigation had the Petition had been granted.
GroupMe Gets an FCC Green Light on Sending Administrative Texts to Confirm Interest in Joining Social Network Groups
Previous TCPA Blog posts have noted that the FCC has a growing backlog of petitions for rulemaking, expedited declaratory ruling, or petitions for clarification on numerous issues posed by the TCPA. [1] On a recent Friday, the FCC acted on two separate long pending petitions for expedited declaratory ruling. This post highlights the FCC’s ruling on the petition filed by GroupMe, Inc./Skype Communications S.A.R.L. (“GroupMe”).
FCC Grants Limited Package Delivery Notification “Prior Express Consent” Exemption
On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.) In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.
Commissioner O’Reilly Calls for FCC Action on Backlog of Petitions
In a March 25, 2014 blog post titled “TCPA: It is Time to Provide Clarity,” Commissioner O’Reilly recognized the pressing need for clarity and called for the FCC to act “as soon as possible.” (Read entire post on the Official FCC Blog here). Commissioner O’Reilly’s comments on the past year’s dramatic increase in TCPA litigation and the significant inventory of pending petitions echoes the concerns raised by many petitioners and highlights the fact that fear of litigation is discouraging businesses from offering communications services to consumers. (Prior blog posts addressing a number of the individual petitions filed before the FCC can be found here, here, and here.) As a result, Commissioner O’Reilly points out, consumers are not receiving the “notifications and offers that they want and expect.” This outcome is inconsistent with the balance “between protecting consumers from unwanted communications and enabling legitimate businesses to reach out to consumers that wish to be contacted” that Congress sought to achieve through the TCPA, and requires the FCC to “take a hard look at its own precedent” and “tackl[e] this backlog in a comprehensive manner.”
Two days after Commissioner O’Reilly’s remarks, the FCC granted in part two petitions for expedited declaratory ruling. (The FCC’s March 27, 2014 rulings are available here and here.) The Commissioner’s blog post, in conjunction with the FCC’s recent rulings, may lend additional support to staying ongoing litigation proceedings pending agency action under the primary jurisdiction doctrine, as the Southern District of Texas and the Eastern District of California have already done. (See our posts covering these decisions here and here.)
TCPA Petitions Keep Pouring Into the FCC
As previously covered in other TCPA blog posts, the FCC maintains a range of TCPA rules addressing certain key elements of telemarketing and even non-telemarketing call activities that can implicate routine interactions between companies and their customers or prospective customers. The proper scope and interpretation of some of these rules continue to be the subject of newly filed petitions for clarification, declaratory ruling or even requests for outright waiver of certain FCC rules. We highlight here several of the more recent additions to the FCC’s already large compliment of pending TCPA petitions.
D.C. Circuit Dish Network Decision Fails to Clear the Muddied TCPA Waters of a Seller’s Vicarious Liability
On January 22, 2014, the United States Court of Appeals for the District of Columbia Circuit dismissed Dish Network LLC’s petition for review of a 2013 Declaratory Ruling (“Declaratory Ruling”)[1] by the Federal Communications Commission (FCC), which clarified whether a seller may be held vicariously liable under federal common law principles of agency for violations of Sections 227(b) or 227(c) of the TCPA.
Hobbs Act Issues Abound in TCPA Cases, Some Drawing FCC Reaction
Appropriate application of the Administrative Orders Review Act (aka the Hobbs Act) can become a contentious issue in some TCPA cases, and in this post we highlight a few recent examples. The Hobbs Act provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of an agency such as the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry. Thus, while plaintiffs in TCPA cases may allege that aspects of the TCPA laws or FCC rules have been violated, they are not free to collaterally attack the substance of FCC rules that they have not timely challenged. The FCC is understandably concerned when plaintiffs mount an indirect challenge of the agency’s rules, in some cases so much so that the agency participates in a court proceeding.
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FCC Opportunities for TCPA Rule Revision or Interpretation
The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling. Immediately upon the federal government’s reopening, two additional petitions were filed. While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.
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