“The Number You Have Dialed Has Changed Subscriber” or the Advent of the Reassigned Numbers Database

After years of discussion and planning, the FCC’s Reassigned Numbers Database opened for commercial use on November 1, 2021. Now business callers can register for a paid subscription with the FCC’s designated Administrator, SomosGov, to query both the connection and permanent disconnection status of over 152 million U.S. telephone numbers through this web-based platform. This information can let subscribing callers know whether customers who had previously given consent to receive calls and texts from the business have disconnected their phone numbers and whether these phone numbers have since been reassigned to others. By reducing the likelihood of unwittingly making calls to unintended recipients, the Reassigned Numbers Database is expected to prevent millions of “unwanted calls intended for someone who previously held their phone number,” which should provide callers some protection against TCPA allegations of calling without adequate prior consent.

Initially adopted in December 2018, the Reassigned Numbers Database proposal and framework underwent many rounds of public comments on various aspects of its implementation, had nearly three years of preparation, and had a three-month beta test. Since April 2021, nonexempt communications service providers have been reporting permanent disconnections to the Reassigned Numbers Database each month, accumulating data about over 152 million U.S. telephone numbers (including toll-free numbers). Smaller communications service providers began reporting their records into the Reassigned Numbers Database on October 15, 2021.

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New Petition Renewing Request for FCC Clarification of TCPA Status of “Ringless Voicemail” for “Get Out the Vote” Campaigns

The FCC recently announced a public comment period for a new Petition for Declaratory Ruling that seeks to have the FCC “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (RVM) technology does not constitute a ‘call’” subject to TCPA prohibitions. The Petition was filed by the U.S. Senate campaign for David Perdue – Perdue for Senate, Inc. (Perdue) stemming from litigation in Georgia related to primary election delivery of RVMs to voters. Interested parties have until October 4, 2021, to submit comments and until October 19, 2021, to submit reply comments.

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FCC Seeks to Assess a $5.1 Million TCPA Fine from Political Operatives Behind Alleged Anti-Voting Phone Calls

The Federal Communications Commission has proposed to slap a Virginia political firm and two of its principals with a $5,134,500 fine for placing over one thousand prerecorded phone calls to cell phones across the country without prior consent from recipients, in violation of the TCPA and Commission rules. The action is the FCC’s first big enforcement matter under the recently enacted Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act and demonstrates the Commission’s willingness to use that statute to assess hefty penalties against noncompliant entities.

Under the 2019 TRACED Act, the Commission may issue a “Notice of Apparent Liability for Forfeiture” to an entity that violates the TCPA’s prohibitions on prerecorded voice messages and autodialing systems, without first having to issue a warning to the entity. See Pub. L. No. 116-105, 133 Stat. 3274, Sec. 3(a). The defendant then has an opportunity to challenge the allegations before the Commission issues a final decision on liability and fines. See FCC, Enforcement Primer (“FCC-Initiated Investigations”). Prior to the TRACED Act, FCC rules required the Commission to issue a citation to an alleged violator of § 227(b) before it could seek to impose a forfeiture penalty upon them.

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Private Cause of Action Exists for Violations of Do-Not-Call Rule, North Carolina Federal Judge Says

Last week, Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina handed down a decision of first impression for that court: the FCC’s do-not-call rule, 47 C.F.R. § 64.1200(d), creates a private right of action for telephone subscribers who receive calls in violation of that rule’s “minimum standards.” The decision widens the growing split among federal courts as to which provision of the TCPA gives life to the DNC rule.

On its motion to dismiss, the defendant argued that the plaintiff could not maintain an action for alleged violations of § 64.1200(d) because the FCC promulgated that rule under 47 U.S.C. § 227(d), which does not create a private right of action for violations of implementing regulations. Fischman v. MediaStratX, LLC, No. 2:20-CV-83-D, 2021 WL 3559639, at *4 (E.D.N.C. Aug. 10, 2021). In opposition, the plaintiff argued that the rule was actually passed pursuant to 47 U.S.C. § 227(c), which does create a private right of action for such violations. Id.

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Business or Residential? Ambiguity Surrounding Number on Do Not Call Registry Can Defeat Class Certification

In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims.  Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).

In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c).  Id. at *1.  As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry.  New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative.  Id.  In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number.  Id. at *5.

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FCC Order Causes Confusion Regarding Consent Required for Informational Calls to Residential Landlines

On December 30, 2020, the FCC issued a Report and Order (the December 2020 FCC Order) to implement Section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The December 2020 FCC Order contains a critical internal inconsistency that has caused significant confusion regarding the level of consent required for certain prerecorded informational calls to residential landlines. As discussed below, the inconsistency is almost certainly the result of a drafting error.

The relevant terms of the TRACED Act state that the FCC must ensure that any exemptions to Section 227(b)(2)(B) or (C) of the TCPA include specific limits on “the number of such calls that may be made to a particular called party.” Dec. 2020 FCC Order ¶ 2 (citing TRACED Act, Pub. L. No. 116-105, 133 Stat. 3274, § 8 (2019)). The December 2020 FCC Order amends 47 C.F.R. § 64.1200(a)(3)(ii)-(iii) to limit the number of calls that a caller can make to a residential landline under the exemption for “informational” calls to three such calls within any thirty-day period.

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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).

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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   »

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.”

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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.”

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