Archive: 2018

1
FCC Seeks Comment on TCPA Following D.C. Circuit’s Decision in ACA International
2
Congress Holds Hearings on Abusive Robocalls and Caller ID Spoofing – Possible Legislative or Regulatory Changes Requires Close Watch
3
Trade Groups Petition the FCC to Adopt a Narrow Interpretation of Autodialer Under the TCPA
4
District Court Finds No Violation of First Amendment in TCPA Suit Brought By Coalition of Bi-Partisan Political Organizations
5
Court Finds Website Owner Did Not Send Text Messages Initiated by its Users and thus Did Not Violate the TCPA
6
D.C. Circuit Strikes Key Elements of FCC’s 2015 Order Interpreting the TCPA, Upholds Certain Provisions
7
District Court Dismisses TCPA Class Action for Pharmacy Reminder Calls Under “Emergency Purposes” Exception
8
Legislative Efforts to Curb Caller ID Spoofing Continue at Federal and State Levels
9
Second Circuit Affirms Dismissal of Action Against Healthcare Provider but Cautions Careful Review of TCPA Exemptions

FCC Seeks Comment on TCPA Following D.C. Circuit’s Decision in ACA International

By Joseph Wylie, Molly McGinley, Andrew Glass, Greg Blase, Pamela Garvie, Amy Carnevale, and Nicole Mueller

The Consumer and Governmental Affairs Bureau of the Federal Communications Commission (the “FCC”) recently issued a public notice seeking comment on issues related to interpretation and implementation of the Telephone Consumer Protection Act (the “TCPA”).  The notice followed the recent decision of the United States Court of Appeals for the District of Columbia in ACA International v. FCC, in which the Circuit Court affirmed and vacated in part a rule previously issued by the FCC.  Our prior coverage of ACA International can be found here.

First, the FCC seeks comment on the TCPA definition of “automatic telephone dialing system.”  The TCPA defines an automatic telephone dialing system as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  The FCC had previously interpreted the term “capacity” to include a device “even if, for example, it requires the addition of software to actually perform the functions described in the definition.” The ACA International Court set that definition aside—finding that the agency’s “capacious understanding of a device’s ‘capacity’ lies considerably beyond the agency’s zone of delegated authority” and that it would have “the apparent effect of embracing any and all smartphones.”  The FCC seeks comment on how to interpret “capacity” in light of the guidance provided in ACA International, specifically seeking comment on how to more narrowly interpret the word “capacity” to better comport with congressional findings and the intended reach of the statute.

The FCC further seeks comment on the functions a device must be able to perform to qualify as an automatic telephone dialing system.  The FCC seeks comment on whether equipment can be considered an automatic telephone dialing system if the equipment cannot itself dial random or sequential numbers.  And the FCC seeks comment on whether the prohibition on making certain calls using an automatic telephone dialing system should apply to equipment that has the ability to use such technology but does not actually use it in making the call.

Second, the FCC seeks comment on how to treat calls to reassigned wireless numbers under the TCPA where the statute carves out calls “made with the prior express consent of the called party” from its prohibitions.  The FCC seeks comment specifically on the definition of “called party:” does it refer to the person the caller expected to reach (or reasonably expected to reach) or the person that the caller actually reached, i.e., the wireless number’s present-day subscriber?  Further, does it include the “customary user” (e.g., the close relative on a subscriber’s family calling plan)?

Third, the FCC seeks comment on how a called party may revoke prior express consent to receive robocalls.  The ACA International Court found that (1) “a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller,” and (2) such a standard means “callers . . . have no need to train every retail employee on the finer points of revocation” and have “every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods.”  The FCC now seeks input on what, if any, opt-out methods exist that would be sufficiently clearly defined and easy to use such that “any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable” for unwanted calls (i.e., saying “stop calling” in response to a live caller, offering opt-out through a website, or responding with “stop” to unwanted texts; and whether callers must offer all or some combination of such methods to qualify).

Fourth, the FCC seeks renewed comment on two pending petitions for reconsideration of the FCC’s Broadnet Declaratory Ruling, in which the FCC determined that the TCPA does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions.  The petitions seek reconsideration of the FCC’s interpretation of “persons” under the TCPA, and clarification of whether federal government contractors, regardless of their status as common-law agents, are “persons” under the TCPA.  The FCC now seeks comment on whether contractors acting on behalf of federal, state, and local governments are “persons” for purposes of the TCPA.

Fifth, the FCC seeks renewed comment on the pending petition for reconsideration of its 2016 Federal Debt Collection Rules, which seeks reconsideration of several aspects of the rules, including the applicability of the TCPA limits on calls to reassigned wireless numbers.  Referring to the holding in ACA International, the FCC seeks renewed comment on “this and other issues” raised by the petition.

Comments are due by June 13, 2018 and reply comments are due by June 28, 2018.

This public notice, along with recent congressional hearings considering legislation applicable to telephone calls (previously discussed here), demonstrates that in the wake of ACA International, the laws and regulations applicable to outbound calling will continue to evolve.

 

Congress Holds Hearings on Abusive Robocalls and Caller ID Spoofing – Possible Legislative or Regulatory Changes Requires Close Watch

By Pamela Garvie and Amy Carnevale

The Senate Commerce Committee and House Energy and Commerce Committee held back-to-back hearings late last month on abusive robocalls and caller ID spoofing and how to combat them. Committee members and witnesses both highlighted the fact that robocalls and ID spoofing have “exploded in recent years” and several noted that “over 3 billion calls were placed [in March] alone” and “about a quarter of these calls are scam calls.”  Further, because the technology used to place robocalls and to spoof are evolving technically, the number of calls continues to grow.  There was broad agreement on both committees that consumer education, aggressive Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) enforcement actions, and the use of new ID verification and robocall-blocking technologies are important tools in combating these calls.  However, Republicans and Democrats and business and consumer witnesses are generally split on the question of whether legitimate businesses are part of the problem and whether the Telephone Consumer Protection Act (“TCPA”) needs to be reformed or conversely expanded through new legislation and regulations.  This focus on abusive/illegal robocalls and split on the TCPA presents both risks and potential opportunities for businesses and, consequently, requires close watch.

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Trade Groups Petition the FCC to Adopt a Narrow Interpretation of Autodialer Under the TCPA

By: Andrew C. Glass, Gregory N. Blase, Joseph Wylie, Molly McGinley, Pamela Garvie, Amy Carnevale, Roger L. Smerage, and Hollee M. Watson

A coalition of trade groups recently petitioned the Federal Communications Commission (the “Commission”), urging it to adopt a narrow interpretation of “Automated Telephone Dialing System” (“ATDS” or, commonly, “autodialers”) under the Telephone Consumer Protection Act (“TCPA”). The petition, filed on behalf of the U.S. Chamber of Commerce and other trade associations, follows the March 2018 decision of the U.S. Court of Appeals for the D.C. Circuit that vacated several key elements of the Commission’s 2015 TCPA Order. ACA Int’l v. Fed. Comm. Comm’n, 885 F.3d 687, 692, 701 (D.C. Cir. 2018).  Among other things, the D.C. Circuit set aside the Commission’s 2015 interpretation of what constitutes an ATDS.  The court held that the Commission’s interpretation of the term ATDS was “unreasonably expansive” and “‘offer[ed] no meaningful guidance’ to affected parties in material respects on whether their equipment is subject to the statute’s autodialer restrictions.”  Because of the limited scope of the matter before it, the D.C. Circuit did not itself interpret the term ATDS, but instead provided guidance for the Commission as to how the term should be defined.

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District Court Finds No Violation of First Amendment in TCPA Suit Brought By Coalition of Bi-Partisan Political Organizations

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, Michael R. Creta, and Elma Delic

The U.S. District Court for the Eastern District of North Carolina recently rejected a First Amendment challenge to a portion of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). In American Association of Political Consultants, Inc., et al. v. Sessions, et al., Case No. 5:16-cv-00252-D (E.D.N.C.), a bi-partisan coalition of political groups sued the federal government.  The coalition asserted that the TCPA’s prohibition on making auto-dialed calls or texts to cell phones without the requisite consent (the “cell phone ban”) imposes a content-based restriction on speech that does not pass strict scrutiny and is unconstitutionally under-inclusive.  (The plaintiffs’ complaint was previously discussed here.) The government defended the TCPA’s constitutionality.

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Court Finds Website Owner Did Not Send Text Messages Initiated by its Users and thus Did Not Violate the TCPA

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Matthew T. Houston

In a recent decision, the U.S. District Court for the Northern District of Illinois found that the host of an automobile website did not violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by providing its users a platform to send automated text messages regarding car listings.  In Serban v. CarGurus, Inc., Case No. 1:16-cv-02531 (N.D. Ill. Mar. 12, 2018), a user of the defendant’s website mistyped her telephone number when attempting to send herself a car listing.  In doing so, the user performed a multi-step process—including selecting the “Send to Phone” option, entering the telephone number, and clicking a “Send” button—to generate a text message automatically created by CarGurus based on the car selected.  As a result of the mistyped telephone number, the text message was transmitted to the plaintiff rather than the user.

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D.C. Circuit Strikes Key Elements of FCC’s 2015 Order Interpreting the TCPA, Upholds Certain Provisions

By Joseph Wylie, Andrew C. Glass, Molly K. McGinley, Gregory N. Blase, Nicole C. Mueller, and Roger L. Smerage.

On March 16, 2018, in a long-awaited decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated key provisions of the 2015 Federal Communications Commission order regarding the Telephone Consumer Protection Act, 47 U.S.C. § 227, including provisions regarding the definition of an autodialer and calls to reassigned wireless numbers.  Click here for a full discussion of the decision.

District Court Dismisses TCPA Class Action for Pharmacy Reminder Calls Under “Emergency Purposes” Exception

By: Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

A federal district court recently dismissed a putative Telephone Consumer Protection Act (“TCPA”) class action against CVS Health Corporation (“CVS”) Lindenbaum v. CVS Health Corp., Case No. 17-CV-1863 (N.D. Ohio Jan. 22, 2018), because the reminder calls to renew prescriptions fell within the “emergency purposes” exception of the TCPA.

Plaintiff Shari Lindenbaum alleged that CVS made at least six prerecorded prescription reminder calls to her cellphone in early 2017. She claimed that she received these calls because she had a “recycled” cell phone number — a number that once was used by an individual from whom the caller obtained consent but had since been reassigned to a different individual — and that she had never provided “prior express written consent” to receive the calls.  CVS asked the court to dismiss Lindenbaum’s claims, primarily arguing that the calls fell within the TCPA exception for “emergency purposes.”

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Legislative Efforts to Curb Caller ID Spoofing Continue at Federal and State Levels

By: Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

Caller ID spoofing—the act of using commercially-available technology or services to alter the name and telephone number that appear on the called party’s caller ID display—is pervasive. It presents significant risk not only to recipients (of being duped into thinking a call is from someone it is not) but also to the person or business whose name and telephone number the spoofer appropriates.  An unknowing recipient of a spoofed call could initiate legal proceedings against a completely innocent person or business whose information has been spoofed, causing that party unwarranted reputational harm.  Although federal and state governments have attempted to legislate against illegitimate caller ID spoofing, such legislation has struggled to counteract the problem.  Recently, however, legislators at both levels of government have undertaken new efforts to curtail harassing and deceptive use of spoofing.

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Second Circuit Affirms Dismissal of Action Against Healthcare Provider but Cautions Careful Review of TCPA Exemptions

By: Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The Court of Appeals for the Second Circuit recently determined that a flu shot reminder text message sent by a hospital is not an “advertisement” for purposes of the level of consent required under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) (the “TCPA”).  In issuing its ruling in Latner v. Mt. Sinai, No. 17-99 (2d Cir. Jan. 3, 2018), the Second Circuit gave effect to the FCC’s “Healthcare Exception,” which holds that “a ‘health care’ message” sent by a HIPAA “covered entity” does not require prior express written consent.

Plaintiff David Latner visited a Mt. Sinai medical facility in 2003, where he signed release forms granting consent to Mt. Sinai to use his health information “for payment, treatment and hospital operations purposes.”  On September 19, 2014, Mr. Latner received a single text message sent on behalf of Mt. Sinai by a third party encouraging him to schedule an appointment to obtain a flu shot.  Mt. Sinai stated that it sent flu shot reminder texts to all active patients of the facility Mr. Latner visited the office within three years prior to the date of the texts.  Mr. Latner’s last visit fell within that timeline.  Mr. Latner filed a lawsuit, alleging that Mt. Sinai violated 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits anyone from making any call (including text messages) using any automatic telephone dialing system or prerecorded voice to a cellular telephone service without prior written express consent.  The District Court for the Southern District of New York granted Mt. Sinai’s motion for judgment on the pleadings and dismissed the case on the ground that the FCC has exempted healthcare providers from being required to obtain written consent prior to making calls that deliver a healthcare message.

Though it affirmed the lower court’s ultimate decision, the Second Circuit determined that the “analysis was incomplete” because it had not determined whether Mr. Latner had provided his prior express consent to receive text messages sent on behalf of Mt. Sinai.  Considering the facts of the situation, the Second Circuit determined that the text message fell within the scope of consent that Mr. Latner had previously granted to Mt. Sinai, where the consent form included a reference to Mt. Sinai sharing his information for “treatment” purposes, and the privacy notices stated that the facility could use Mr. Latner’s information “to recommend possible treatment alternatives or health-related benefits and services.”

This opinion illustrates the care callers must employ in drafting its privacy and consent notices as they relate to patients receiving calls or messages, even where the message relates to treatment provided by a healthcare provider.

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