Category - "FCC Actions"

FCC Issues Ruling Applying TCPA’s “Emergency Purposes Exception” To Calls Addressing Health and Safety Risks Arising Out Of COVID-19 Pandemic

Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.

As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.

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Draft Reassigned Numbers Database Technical Requirements Unveiled and Awaiting Comments

The long awaited draft technical requirements for the FCC’s reassigned numbers database was released today. At the time of the adoption of an order establishing this database in December 2018, the FCC tasked its North American Numbering Council (NANC) with studying several technical issues that are prerequisite to ensure the effectiveness of this database within a year. However, stating that the task was unexpectedly complex, the NANC sought two extensions of the deadline in June and in September 2019, using the additional time to formulate baseline technical requirements for the database.

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Florida Federal Court Stays Putative Class Action to Await Guidance from the FCC and Eleventh Circuit as to What Constitutes an ATDS

It can fairly be said that the statutory definition of “automatic telephone dialing system” (“ATDS”) has generated far more questions than answers—for courts and litigants alike. This is especially true in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), where the D.C. Circuit set aside the FCC’s sweeping interpretation of the ATDS definition, and thus handed the baton back to the Commission to provide guidance on what is (and is not) an ATDS. But almost two years later, the FCC has yet to issue its ruling.

In the many TCPA cases that turn on the definition of ATDS, defendants may wish to file a motion to stay the action so that the court can await guidance from the FCC’s anticipated ruling on this issue. Indeed, over the course of the last year, multiple federal judges, at least in Florida, have been willing to grant such motions, particularly because the ATDS definition is also center stage in an appeal pending before the Eleventh Circuit. See Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499 (11th Cir. filed Oct. 24, 2018).

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TRACED Act Creates New FCC Implementation Timelines

As predicted, amendments to the TCPA – in the form of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”) – were signed into law by the President of the United States on December 30, 2019. The Chairman of the Federal Communications Commission (FCC) applauded this milestone on Twitter, commenting: “[T]he TRACED Act was signed into law, giving the FCC and law enforcement greater authority to go after scammers.” As the saying goes, with great power comes great responsibility: the enactment started the countdown for a long list of actions that the FCC is required to take during 2020 and beyond. This will add to the already active TCPA dockets at the FCC.

We share below the timeline for these actions to help our readers anticipate and prepare for the regulatory activities that will ensue. We summarized the content of these required FCC actions previously at this post.
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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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