Some welcome the New Year with new goals and new plans while others – the FCC, in particular, welcomes the New Year by wrapping up TCPA rulemakings and issuing other rulings. As expected, a number of TRACED Act items were included in orders issued in late December 2020. As we previewed, the FCC amended nine existing TCPA exemptions, imposing additional restrictions on pre-recorded/artificial voice calls placed to residential lines even for informational calling, and adopted new redress requirements on and safe harbor protections for carriers engaging in network-based call blocking. The FCC also denied two petitions for declaratory rulings, clarifying that “soundboard callers use a prerecorded voice to deliver a message” and that as a result, these calls made using soundboards are subject to TCPA restrictions. In light of these changes, we encourage business callers to carefully assess how they affect any existing calling protocols and compliance practices.
Category - "FCC Actions"
FCC Reconsiders Government Contractors’ Classification as TCPA Non-“Persons”
The FCC in 2016 determined that the federal government was not a “person” subject to the TCPA, and that by extension, federal contractors working within the scope of their delegated authority were also not bound by TCPA restrictions. This Broadnet Declaratory Ruling was the subject of at least one prominent dissent. At the time, then-Commissioner Ajit Pai observed: “[I]t is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.” The National Consumer Law Center and Professional Services Council both filed petitions for reconsideration and this issue was again joined on December 14, 2020, when the FCC issued a Reconsideration Order stating that government contractors – but not federal or state governments themselves – “must obtain prior express consent to call consumers” when making calls on behalf of the government.
Continue reading “FCC Reconsiders Government Contractors’ Classification as TCPA Non-“Persons””
FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions
Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that any exemptions it adopts apply only to the specific set of facts considered by the agency. Sometimes the jigsaw puzzle pieces align, but other times they do not perfectly fit together, making exemptions less useful than they might otherwise be.
Advertised Businesses Not Liable for Unauthorized Fax Advertisements, FCC Declares
On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.
In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient. See Pub. L. No. 109-21, 119 Stat. 359 (2005). The FCC has defined the “sender” of a fax for liability purposes as any “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10) (2019).[1] The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax. See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).
Safe Harbors and Erroneous Blocking Redress Measures Adopted by the FCC; Additional Rulemaking Proposed
As we previewed recently, the FCC adopted a set of rule amendments through a Third Report and Order for its “call blocking by default” framework on July 16, 2020. These rules focus on two safe harbors potentially shielding voice service providers from liability when they block calls that fail the SHAKEN/STIR authentication framework or that originate from “bad-actor upstream voice service providers.” These rules also generally provide for protection of “critical calls,” and condition safe harbors on having a no-cost, streamlined solution designed to remedy blocking errors, without defining what constitutes an “error.”
The rules as adopted had few substantive changes from the draft version that was released prior to the FCC’s July 2020 Open Meeting. First, the FCC added a clarification that the safe harbor that allows voice service providers to block calls based on “bad-actor upstream voice service providers” is not intended to “affect[] the private contractual rights a downstream provider has to block or refuse to accept calls pursuant to its agreements with wholesale customers.” This clarification suggests that the FCC does not intend this safe harbor to be the only permissible provider-based blocking under the FCC’s rules. For example, the FCC has long recognized that consumer consent or opt-in could be a valid basis for call blocking.
The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor
In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading “The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor”
Regulatory Updates: FCC to Vote on “Robocall” Measures to Mitigate Erroneous Blocking and to Advance Reassigned Numbers Database Rules to the Next Step
The FCC recently reported a decrease of approximately 60% of consumer robocall complaints and a drop of approximately 30% in volume of “unwanted robocalls” that were placed in the first half of 2020 as compared to the first half of 2019. Considering that the FCC adopted the first-of-its-kind “call blocking by default” framework in June 2019, some might wonder: Does this mean the FCC’s “call blocking by default” framework has been successful?
While the FCC cited to voice service providers reporting that they have so far only discovered less than 1% of – or as few as 0.2% of – blocked calls to be false positives, the seemingly low percentage still means that millions of lawful and wanted calls have been erroneously blocked. For example, Hiya reported that it has blocked nearly 800 million calls in 2019, which could mean that 0.2% of which – 1.6 million calls – had been blocked in error in that year. Likewise, Nomorobo blocked over 512 million robocalls in 2019; its blocking platform may have affected the delivery of 1.024 million lawful calls in that year.
FCC Affirms that Health Plans and Providers Cannot Offer Post-Call Opt-Out in Lieu of “Prior Express Consent”
The FCC’s Consumer and Governmental Affairs Bureau last week issued a declaratory ruling resolving a long-pending Petition on the question of whether certain healthcare-related calls, given their significance and value for consumers, should be entirely exempted from the TCPA’s prior express consent requirement, or at least exempted as long as consumers are allowed to opt out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or expand the scope of exemptions already in place for certain types of health-care-related calls.
FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers
On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”
Robocalls a Weapon for Good and Evil in Coronavirus Fight
Chicago partner Brad Andreozzi was quoted in a Law360 article discussing both the need for automated calls and texts to disseminate timely health and safety information about the COVID-19 pandemic and the uptick in robocalls seeking to profit from fears in the face of the pandemic. According to Brad, “There are two strands running through the FCC’s regulatory strategy right now. One is to promote genuine emergency-purposes communications … and the other is to issue a warning shot across the bow to would-be scammers who are looking to exploit the pandemic.”
Continue reading “Robocalls a Weapon for Good and Evil in Coronavirus Fight”