On Wednesday, the Federal Communications Commission (“FCC”), which has regulatory authority over the Telephone Consumer Protection Act (“TCPA”), announced that Chairman Tom Wheeler plans to resign as of January 20, 2017, when President-Elect Trump is expected to be inaugurated. Appointed in 2013 by President Obama, Chairman Wheeler’s term was not set to expire until 2018. It is tradition, however, for a sitting chair whose term extends into a new presidential administration to resign when the new president is from the other political party.
The wireless trade group CTIA–The Wireless Association recently asked the Federal Communications Commission (“FCC”) to reject a petition that asks the agency to declare that text messages fall under the FCC’s Open Internet Order. Twilio, Inc., a cloud-based company that manages and facilitates the sending of automated text messages, filed the petition, which seeks to have the FCC confirm that text messages are telecommunication services subject to Title II of the Communications Act of 1934 and the protections of the Open Internet Order. The petition argues that wireless carriers use imprecise filtering systems to block millions of text messages that people have asked to receive, including critical information from their schools. It also claims that wireless carriers are violating the FCC’s rules under the Telephone Consumer Protection Act, 47 U.S.C. § 227, by blocking text messages without giving consumers a choice or making them aware of the practice.
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.
On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls. The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.
On Friday, the Attorney General of the United States responded to a lawsuit brought by a bi-partisan coalition of political groups challenging the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.) (previously discussed here) the plaintiffs seek a declaration that the TCPA violates the First Amendment. The lawsuit asserts that the statute imposes a content-based restriction on speech that fails to pass strict scrutiny.
On July 5, 2016, the Federal Communications Commission (the “FCC” or “Commission”) released a Declaratory Ruling clarifying that the Telephone Consumer Protection Act (the “TCPA”) does not apply to autodialed or prerecorded- or artificial-voice phone calls, including text messages, made by the federal government and its contractors who are acting within the scope of their authority. The FCC did not address whether the TCPA continues to apply to state and local governments and their agents.
On May 18, 2016, the Senate Commerce Committee held a hearing to examine the TCPA’s effects on businesses and consumers, and assess whether the law is ripe for reform. The TCPA will mark its 25-year anniversary this coming December and, according to Senate Commerce Committee Chairman John Thune (R-SD), is “showing its age.” (The hearing transcript may be found here.)
The Committee members who spoke at the hearing were, in general, divided on party lines on the need for reform. Republicans noted the rising tide of TCPA litigation – now the second most filed type of case in federal courts – and the corresponding costs in terms of money outlays, delays in providing consumers with important health, safety, and financial information, and lost innovation opportunities. They also noted that the average payout to plaintiffs’ attorneys in TCPA suits is approximately $2.4 million, while the average consumer award is just $4.12. Senator Roy Blunt (R-MO) observed that Congress needs to figure how to address two very different problems — the problem of scam robocalls being generated from overseas and the problem of legitimate businesses trying to reach people whose numbers have been reassigned.
Although the primary target of the TCPA is telemarketing and commercial solicitations, certain TCPA restrictions, including prohibitions on the use of prerecorded voice messages and automatic telephone dialing systems (“ATDS”) for calls placed to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii) (hereinafter “the cell phone ban”), apply with equal force to calls made by political campaigns.
On May 12, 2016, several political organizations, American Association of Political Consultants, Inc. (“AAPC”), Democratic Party of Oregon, Inc. (“DPO”), Public Policy Polling, LLC (“PPP”), Tea Party Forward PAC (“TPF”), and Washington State Democratic Central Committee (“WSDCC”) (collectively, “Plaintiffs”), brought a First Amendment challenge to the prohibition on making unsolicited calls to wireless telephone numbers by filing a declaratory judgment action in the United States District Court for the Eastern District of North Carolina against the Attorney General of the United States. American Association of Political Consultants, Inc., et al. v. Lynch, No. 5:16-cv-00252-D (E.D.N.C. May 12, 2016).
On August 28, 2015, the Federal Communications Commission, through its Consumer & Governmental Affairs Bureau, issued three separate rulings on petitions relating to its fax rules under the Telephone Consumer Protection Act.
In a declaratory ruling, CGAB clarified that:
- faxes sent and received over telephone lines are subject to TCPA regulation even if those faxes are “converted to and delivered to a consumer as an electronic mail attachment.”
- “the consumer to whom the content of a fax or efax is directed,” and not the company hosting the fax servers that receive the faxes over a telephone line and re-send the faxes to the subscriber of the service, is the recipient of the fax under the TCPA.
- the act of sending a previously-faxed document by email is not subject to TCPA regulation.
CGAB also declined to provide “safe harbor” fax opt-out language, noting that the TCPA rules and orders already set forth the required content for opt-out notices. Finally, CGAB declined to issue a blanket rule as to whether “third parties, including fax broadcasters, who are retained to accept opt-out requests” are subject to TCPA liability, and instead noted that the question of whether a third party has sufficient involvement in the sending of faxes to create liability is an individualized inquiry.
As originally published in Law360
On Friday, July 10, 2015, the Federal Communications Commission issued its much-anticipated Declaratory Ruling and Order clarifying numerous aspects of the Telephone Consumer Protection Act. The commission had adopted the order at a particularly contentious June 18, 2015 open meeting (see earlier post), which one commissioner called “a farce” and another described as “a new low … never seen in politics or policymaking.”
In an unusual move, the commission made the order effective on its July 10 release date, rather than following publication in the Federal Register as is typical, providing companies with no opportunity to digest the order and adjust business practices accordingly.
As expected, the order largely brushes aside legitimate business concerns and a sensible approach to TCPA regulation in favor of findings that potentially increase risk for businesses in a variety of circumstances, including the possibility of increased class action litigation. In addition, beyond clarifying that carriers may offer call-blocking technologies to consumers, the order offers little to actually protect consumers from scam telemarketing schemes, including offshore “tele-spammers” that use robocalling or phone-number spoofing technologies.