The Consumer and Governmental Affairs Bureau of the Federal Communications Commission (the “FCC”) recently issued public notices for comments on two petitions that seek clarification or reversal of the FCC’s interpretation of the “prior express consent” of the Telephone Consumer Protection Act (the “TCPA”). Taken together, the petitions request a reversal of the FCC’s long-standing guidance that a consumer provides “prior express consent” to be contacted on a wireless number by providing that number to a business in connection with a voluntary transaction, thus allowing the business to use autodialed or prerecorded voice calls to the consumer to communicate with the consumer regarding the parties’ relationship. A change to the FCC’s interpretation of “prior express consent” could have significant impact on businesses’ communications with its existing customers.
In a non-precedential opinion issued earlier this week, the Second Circuit held in Leyse v. Lifetime Entertainment Services, LLC, that a class could not be certified in a Telephone Consumer Protection Act case because the plaintiff did not have a list of the recipients of telemarketing phone calls. The Second Circuit followed its own precedent identifying ascertainability as an “implied requirement” under Rule 23. In so ruling, the Second Circuit has further demonstrated the different approaches to ascertainability that federal circuit court apply (previously discussed here).
Consumers Union, the consumer advocacy arm of Consumer Reports, has filed a letter in support of the National Consumer Law Center’s (NCLC) request that the Federal Communications Commission (FCC) stay its recent ruling on Broadnet Teleservices LLC’s Petition for Declaratory Ruling in the on-going rulemaking matter In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 while that ruling is under appeal. The July 5, 2016, Broadnet Ruling (previously discussed here) held that the TCPA, and its ban on autodialed calls to cellular telephones, does not apply to calls placed by the federal government itself, or its contractors, so long as the calls are placed in the course of conducting “official government business” and, for calls placed by contractors, the calls comply with the government’s instructions. On July 26, 2016, the NCLC moved the FCC to reconsider its ruling and stay its effect until the motion is resolved. Consumers Union is joining the request for the stay as part of its “End Robocalls” campaign, which purportedly seeks “technological solutions to the unwanted robocall problem,” according to the group’s letter to the FCC. If the requested stay is granted, federal government employees and contractors will continue to be subject to the TCPA unless the Broadnet Ruling is upheld.