Category - "FCC Actions"

Legislation Looking Likely on a Number of TCPA “Hot-Button” Issues

Senate Bill 151, now called “the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (the “TRACED Act”), has been reconciled with the House of Representatives’ bipartisan bill House Bill 3375 and was passed in the House on December 4, 2019. This revised amendment has been returned to the Senate for a final vote and is expected to become final legislation “if not this week, then next week,” according to the bill’s sponsor, Representative John Thune. Thus, the prospects for passage of TCPA legislation currently look quite positive.

As drafted, the legislation will kick off a number of activities by the FCC, and may, as a practical matter, require the agency to take prompt actions on long-awaited rulings on critical statutory definitions. We highlight below some of the most notable revisions in the TRACED Act made since July 2019.

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New Petition Seeking FCC Clarification That Calls Using Soundboard Technology Are Not “Entirely Prerecorded Calls” Prohibited By the TCPA

The FCC’s TCPA docket now has two pending petitions for declaratory ruling on the question as to whether outbound telemarketing calls made through soundboard technology are prohibited communications if made without prior consent under the TCPA. As we predicted in April 2019, industries using soundboard technology to streamline their telemarketing operations are increasing their efforts before the FCC in seeking review of this very issue.

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Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues

The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action.  The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf.  Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019).  The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls. Continue reading “Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues”

FCC Amends Its Caller ID Rules to Broaden their Scope and Effect

The FCC on August 1 voted to adopt enhanced Truth in Caller ID rules that will subject a broader range of “spoofed” calls to new heftier statutory civil penalty and potentially criminal sanctions for willful and knowing violations of these FCC requirements. Companies using spoofing technology should have until early 2020 to assess their operations to ensure compliance prior to these amended rules taking effect.

At its Open Meeting, the FCC adopted a Report and Order (R&O) to amend the current Truth in Caller ID rules. The text of the adopted version of the R&O was released on August 5, 2019 and largely remains unchanged since the release of the draft Second R&O. It appears that the rules adopted build upon the framework the FCC proposed in its Notice of Proposed Rulemaking from in February 2019 (click here for our earlier summary of the Notice). Overall, the Second R&O mirrors most of the FCC’s original proposals. The differences we highlight below are relatively technical, reflecting the FCC’s attempt to grapple with and clarify the scope of rule changes in light of foreseeable business use cases that may cause problems that the RAY BAUM’S Act intended to prevent.

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Comment Cycle Begins for the FCC’s Third Further Notice of Proposed Rulemaking on “Call Blocking by Default” Regime And SHAKEN/STIR Implementation Deadline

On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.

High Court Punt Plunges TCPA Suits into Greater Uncertainty

TCPA Blog contributor Justin Kay was quoted in the Law360 article titled, “High Court Punt Plunges TCPA Suits Into Greater Uncertainty,” which examines potential ramifications of the Supreme Court’s recent decision in PDR Network LLC et al. v. Carlton & Harris Chiropractic Inc.

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A Busy Week for Fax Advertisements in the Supreme Court

Earlier this week, the Supreme Court declined to review a Ninth Circuit ruling regarding what does and doesn’t qualify as an “advertisement.”  Supply Pro Sorbents, LLC v. RingCentral, Inc., No. 18-1381, 2019 WL 1959304 (U.S. June 17, 2019).

Fax cover pages were at issue. The defendant in the case allows customers to send online faxes.  Those faxes include a cover page with one line of text that identifies the company (“Send and receive faxes with RingCentral”) and its website (“www.ringcentral.com”). The filer alleged that those cover sheets were advertisements, and therefore that the defendant had violated the TCPA because it did not have recipients’ consent to send them. Continue reading “A Busy Week for Fax Advertisements in the Supreme Court”

TCPA Legislation on the Horizon?

While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.

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The Next Round of the FCC’s “Call Blocking by Default” Approach Kicks off with a Further Notice of Proposed Rulemaking

By directing voice service providers to deal with “unwanted calls” as part of its anti-robocall policies, the FCC seems to have moved well beyond addressing “illegal and spoofed robocalls.” The text of the FCC’s new “Call Blocking by Default” approach was released late on June 7, 2019, which, as we previously predicted, contains several changes to the draft version of the Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM). Depending upon your point of view, the Third FNPRM contains either a few hopeful signs that the FCC understands and is willing to address the practical effects of its highly consequential blocking edict, or troubling confirmation that it has little idea of what it has unleashed on businesses and consumers. Continue reading “The Next Round of the FCC’s “Call Blocking by Default” Approach Kicks off with a Further Notice of Proposed Rulemaking”

FCC Adopts Controversial Declaratory Ruling Encouraging “Call Blocking By Default”

Voice service providers soon may dictate which calls will reach you. The FCC  honed in on “unwanted calls” when it voted at its Open Meeting today to adopt a Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM) permitting voice service providers to implement “Call Blocking by Default.”  We are awaiting and will report on the ruling and notice when it is released.  Continue reading “FCC Adopts Controversial Declaratory Ruling Encouraging “Call Blocking By Default””