Topic: Safe Harbor

Texas District Court Rejects “Influence Liability” Workaround to FCC Exemption for Research and Surveys

A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations.  Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.

In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times.  No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023).  Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website.  Id.  Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand.  Id.  Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata.  Id. at *2.

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Spring Roster of FCC Actions: State-Federal Partnerships, Enforcement Actions, and Reassigned Numbers Database Clarifications and Changes

The FCC’s TCPA dockets did not witness many developments from the beginning of 2022 until February. However, beginning in February and into March, Chairwoman Rosenworcel’s office and the Enforcement Bureau were busy negotiating new robocalling partnerships with state regulators and issuing enforcement orders against suspected or apparent violations. Those activities expanded in April by the issuance of new guidance and a new pricing structure for the Reassigned Numbers Database. We cover each of these topics below.

State-Federal Partnership on Investigations

Since Chairwoman Rosenworcel’s confirmation as the FCC Chair in December 2021, she has put on the top of her agenda building a partnership with state regulators – attorneys general and enforcement agencies. During February, March, and April 2022, Chairwoman Rosenworcel signed memoranda of understanding (MOUs) designed to allow greater cooperation and sharing of information and other investigation intelligence with regard to illegal robocalls and telephone scams. These MOUs also reflect the intention of close collaboration to enforce consumer protection laws concerning robocalls. The FCC currently has MOUs in place with twenty-eight (28) states and more could be in the offing.

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“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 Year, New Rules: FCC Modifies Existing TCPA Exemptions, Adopts New “Call Blocking” Requirements, and Clarifies TCPA Application Over Soundboard Technology

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.

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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.

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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 “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.

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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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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.

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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