While the July 10, 2015 Declaratory Ruling and Order (our summary of which can be found here) was released after the close of business on Friday, one petitioner has already filed a petition for review of the Declaratory Ruling: ACA International (the Association of Credit and Collection Professionals) (“ACA”). ACA filed its petition for review with the United States Court of Appeals for the District of Columbia Circuit on July 10, and filed an amended petition on July 13. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 10, 2015). ACA challenges the FCC’s “treatment of ‘capacity’ within the definition of an automatic telephone dialing system,” the FCC’s “treatment of predictive dialers,” and the FCC’s interpretation of the term “‘prior express consent’ (including its treatment of reassigned numbers.” Amended Petition for Review at 2-3, ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 13, 2015), Doc. No. 1562251. ACA asks the DC Circuit to hold unlawful the FCC’s treatment of “capacity” and compel the FCC to “treat ‘capacity’ in a way that comports with a caller’s right of due process and free speech;” hold unlawful the FCC’s treatment of “predictive dialers” and compel the FCC to “treat them in a way that does not expand the statutory definition . . . beyond the definition that Congress enacted;” and hold unlawful the FCC’s treatment of “prior express consent, including the Commission’s treatment of reassigned numbers,” and compel the Commission to establish either a “viable safe harbor for autodialed ‘wrong number’ non-telemarketing calls to reassigned wireless numbers” or “define ‘called party’ as a call’s intended recipient.” Id. at 4-5.
What You Need to Know About the FCC’s July 10th Declaratory Ruling on the Telephone Consumer Protection Act (TCPA)
A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”). This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes. While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief. Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest. There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks. Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling. Requests may be lodged, however, to stay its enforcement pending review.
FCC Issues Highly Anticipated Declaratory Ruling And Order on TCPA Issues
More than three weeks after its contentious June 18th open meeting, the FCC has finally issued its Declaratory Ruling and Order. Our TCPA team is reviewing its 138 pages (including separate statements from each Commissioner) and will report back shortly.
Internet Association Asks FCC To Distinguish Internet Platforms From Their Users For TCPA Purposes
In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.
FCC’s Enforcement Bureau Commends PayPal for Modifying its User Agreement
We previously advised that the FCC’s Enforcement Bureau, in an unusual move, on June 11 published a letter it sent to PayPal warning that PayPal’s proposed changes to its User Agreement that contained robocall contact provisions might violate the TCPA. These proposed revisions conveyed user consent for PayPal to contact its users via “autodialed or prerecorded calls and text messages … at any telephone number provided … or otherwise obtained” to notify consumers about their accounts, to troubleshoot problems, resolve disputes, collect debts, and poll for opinions, among other things. The Bureau’s letter highlighted concerns with the broad consent specified for the receipt of autodialed or prerecorded telemarketing messages and the apparent lack of notice as to a consumer’s right to refuse to provide consent to receive these types of calls.
Continue reading “FCC’s Enforcement Bureau Commends PayPal for Modifying its User Agreement”
District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward
The District of South Carolina recently rejected the argument that TCPA claims must be dismissed if a plaintiff does not specify the telephone number that was allegedly called. See Williams v. Bank of America, No. 14-4809-RBH (D.S.C. June 19, 2015).
FCC Issues Commissioners’ Written Statements
The FCC has posted the video of and statements from yesterday’s Open Meeting. A compilation of the Commissioners’ written statements on TCPA issues is also available here. We will report back when the Commission issues its ruling.
FCC Holds Contentious Open Meeting, Majority Votes To Arm Plaintiffs With New Swords And Businesses With Few Shields
In the wake of its Open Meeting earlier today, the FCC issued a press release that promises “a package of declaratory rulings” that will bring “much needed clarity for consumers and businesses” on a variety of topics. Whether the rulings provide more answers than questions remains to be seen, as the Commission has yet to issue its order. What was on full display during the meeting and the subsequent press conferences, however, was how disenchanted Commissioners Pai and O’Rielly were with how the order had been negotiated. Neither they nor Chairman Wheeler were willing to elaborate in response to questions from reporters.
FCC To Hold Open Meeting
As we previewed a few weeks ago, the FCC will hold an Open Meeting in Washington, D.C. tomorrow. Its published agenda includes the consideration of “a Declaratory Ruling and Order reaffirming the Telephone Consumer Protection Act’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology, and responding to a number of requests for clarity from businesses and other callers.” For those who are interested, there will be a live webcast of the meeting. We will report back after the meeting concludes.
FCC Warns that Unilateral PayPal User Agreement Changes May Violate the TCPA
In advance of the FCC’s highly anticipated June 18 meeting, during which it is likely to vote on an omnibus order disposing of a wide range of pending petitions for declaratory ruling, the FCC’s Enforcement Bureau took an early shot across the bow at a proposed change to PayPal Inc.’s User Agreement. In an unusual move, the Bureau sent a public letter to PayPal warning it that its new broad “consent to contact” provision may violate the TCPA.
The updates to the User Agreement authorize PayPal to contact a consumer by “autodialed or prerecorded calls and text messages … at any telephone number provided … or otherwise obtained” in order to notify the consumer about his or her account, to troubleshoot problems, or resolve a dispute, collect a debt, poll for opinions, to contact a consumer with promotions, or “as otherwise necessary.” The terms lack an opt-out mechanism for consumers who do not wish to receive these calls. Further, PayPal’s PayPal’s Policy Updates page uses bold and capital letters to make consent to contact a condition of use: “IF YOU DO NOT AGREE TO THE AMENDED USER AGREEMENT, PRIVACY POLICY OR ACCEPTABLE USE POLICY, YOU MAY CLOSE YOUR ACCOUNT BEFORE JULY 1, 2015 AND YOU WILL NOT BE BOUND BY THE AMENDED TERMS.”
Continue reading “FCC Warns that Unilateral PayPal User Agreement Changes May Violate the TCPA”