Currently Pending FCC Petitions in TCPA Matters

This article is republished with permission from Michael Storz, and Drinker Biddle & Reath LLP. It originally appeared on www.tcpablog.com.

Laura Phillips

With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC.  The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding.

Nonpublic draft FCC orders on the following petitions are currently on circulation before the Commission for a vote:

• Blackboard Inc. Petition for Expedited Declaratory Ruling
• Edison Electric Institute Petition for Declaratory Ruling
• Broadnet Teleservices LLC Declaratory Ruling Petition
• National Employment Network Association Declaratory Ruling Petition
• RTI International Declaratory Ruling Petition

Further details on these petitions are included below.

A.  Petitions Relating to “Prior Express Written Consent”

• Rita’s Water Ice Franchise Company, LLC
  • Petition
  • Public Notice
  • Summary: Rita’s Water Ice sent text messages alerting consumers when their favorite ice cream flavors were in stock. Rita’s required the consumer to provide prior express written consent, but had been sued because the consent obtained prior to the FCC’s Oct. 2013 clarification on text messages allegedly did not meet the standards set forth in that order. The FCC sought comment on Rita’s request for a retroactive and prospective waiver of its prior-express-written-consent requirement for automated telemarketing calls. Rita’s claims that it is similarly-situated to other parties who have received such waivers.
  • Timing: Petition was filed on Dec. 02, 2015. Public notice was released Dec. 14, 2015. Comments were due Jan. 13, 2016, and replies were due Jan. 28, 2016.
• National Cable & Telecommunications Association
  • Petition
  • Public Notice
  • Summary: The National Cable & Telecommunications Association (“NCTA”) petitioned the FCC for retroactive and prospective waiver on behalf of its members, arguing that its members are similarly situated to the original petitioners granted waiver in the FCC’s July 2015 waiver order. It alleges that its members “and no doubt every other party to the proceeding – have faced similar confusion” to that which justified the waiver for the original petitioners. The FCC sought comment on NCTA’s request “that its members be included in the group of entities recently granted a retroactive and prospective waiver of the Commission’s prior-express-written-consent requirement for automated telemarketing calls.”
  • Timing: Petition was filed on Oct. 01, 2015. Public notice was released Nov. 3, 2015. Comments were due Dec. 03, 2015, and replies were due Dec. 18, 2015.
• SUMOTEXT Corp.
  • Petition
  • Public Notice
  • Summary: SUMOTEXT Corp. (“SUMOTEXT”) hosts Common Short Codes (“CSCs”), 5-6 digit abbreviated phone numbers used to identify service providers to wireless consumers.  It provides a platform that allows consumers to opt into or out of text message alerts, often by texting words like “JOIN” to a specified CSC.  SUMOTEXT requested a declaratory ruling or clarification that “when a company receives a text message from a consumer requesting to receive more than one text message returned to them that a combination of: (1) the company’s Call to Action advertisement; (2) the content of the inbound text message request the consumer sent to the company; and (3) the content of the company’s opt-in confirmation message reply to the consumer can be used as evidence that the disclosures required by the TCPA were provided in a ‘clear and conspicuous’ manner.”  SUMOTEXT claims that such a ruling is needed because “plaintiffs’ lawyers . . . text ‘JOIN’ to a CSC, lie in wait to receive the very messages they request, and then claim that the business cannot prove that the Commission’s TCPA disclosures were satisfied.”  The FCC sought comment on SUMOTEXT’s alternative requests for declaratory ruling or clarification.
  • Timing: Petition was filed Sept. 03, 2015. Public notice was released Nov. 12, 2015. Comments were due Dec. 18, 2015, and replies were due Jan. 08, 2016.
• National Association of Broadcasters
  • Petition
  • Public Notice
  • Summary: National Association of Broadcasters (“NAB”) filed a petition seeking retroactive and prospective waiver of the FCC’s prior express written consent rules, arguing that “NAB and its members . . . should be availed the same benefit of the waivers that the Commission granted to” previous waiver recipients. Citing the FCC’s July 2015 acknowledgement that its 2012 TCPA Order contained confusing language with respect to its prior express written consent rules, NAB contended that “[t]he same confusion as to whether the 2012 TCPA Order required an additional prior express written consent was articulated by NAB and other similarly situated commenters.” NAB asked the FCC to declare that all parties to the proceeding are entitled to retrospective and prospective waivers as articulated in the 2015 TCPA Order, or alternatively, that at least it and its members were so entitled. The FCC sought comment on both proposals.
  • Timing: Petition was filed on Aug. 18, 2015. Public notice was released Sept. 25, 2015. Comments were due on Oct. 26, 2015, and replies were due on Nov. 09, 2015.
• F-19 Holdings
  • Petition
  • Public Notice
  • Summary: F-19 Holdings, a national gym franchiser, includes in its gym membership agreements the option of providing the gym member’s cellular telephone number. According to the public notice, “F-19 Holdings contends that persons who have provided a cellular telephone number ‘have consented to contact, in some form or manner, from Fitness 19 at that number,’ and further states that ‘gym members can specifically consent to receiving telemarketing text messages for promotions and gym services’ but that such consent has never been a condition to joining the gym.” F-19 Holdings also argued that it and its members were similarly situated to earlier waiver recipients. The FCC sought notice on F-19 Holdings’ request for “a retroactive waiver of the prior express written consent requirement that the Commission adopted in 2012.”
  • Timing: Petition was filed July 29, 2015. Public notice was released Sept. 25, 2015. Comments were due Oct. 26, 2015, and replies were due on Nov. 09, 2015.
• Kale Realty
  • Petition
  • Public Notice
  • Summary: Kale Realty sent texts to recipient with whom it contended it had business or personal relationships noting that it had been selected as a top area workplace in attempt to solicit applications for employment. The FCC’s public notice explains that “Kale Realty also states it is similarly situated to the parties to whom the Commission granted a retroactive waiver in the 2015 TCPA Order and, therefore, requests the Commission grant it the same relief. More particularly, Kale states that it is the defendant in a putative class action lawsuit based on the allegation that it ‘sent a single unsolicited text advertisement in violation of the TCPA’ without obtaining ‘satisfactory consent.’ Kale now requests a retroactive waiver of the application of the Commission’s 2012 prior express written consent requirements . . . .”  The public notice sought comment on these issues.
  • Timing: Petition was filed July 23, 2015. Public notice was released Sept. 25, 2015. Comments were due Oct. 26, 2015, and replies were due on Nov. 09, 2015.
• Blackboard, Inc. – CURRENTLY ON CIRCULATION
  • Petition
  • Public Notice
  • Summary:  Blackboard, Inc. (“Blackboard”) offers a “mass notification platform,” used primarily by educational institutions to communicate regarding emergency closures, threat situations, event scheduling, and other information.  In its petition, it stated that it had been subject to several private actions initiated by consumers alleging that they received prerecorded messages on their wireless device in error.  Blackboard observed that consumers may receive such messages in error due to reassignment of the number by a wireless carrier, a recipient’s decision to forward calls to a different phone number, or other good faith errors about which neither Blackboard’s educational customers nor Blackboard itself would know.  Blackboard accordingly asked the FCC to declare that organizations are not liable for placing autodialed calls to wireless lines “when such calls are made for emergency purposes or are made with prior express consent, but do not reach the intended recipient due to wireless number reassignment or other good faith error.”  The FCC’s public notice sought comment on this proposal.
  • Timing: Petition was filed Feb. 24, 2015.  Public notice was released Mar. 23, 2015.  Comments were due Apr. 22, and replies were due May 07, 2015.
• Mammoth Mountain Ski Area, LLC
  • Petition
  • Public Notice
  • .Summary: In its petition for expedited declaratory ruling, Mammoth Mountain Ski Area, LLC (“Mammoth”) sought “a clarifying or forbearance ruling that consents obtained prior to the October 16, 2013 rule change through consumers’ voluntary provision of their telephone number remain valid as prior contractual obligations and invalidating these consents amounts to an improper retroactive impairment of Mammoth Mountain’s contractual rights.” Alternatively, it sought “a ruling that the 2012 Order interpreting the TCPA improperly defined the term “prior express consent” as written, signed consent because this reading of the statute is manifestly contrary to the plain meaning of the TCPA and Congressional intent that written consent not be required under the TCPA.” The FCC sought comment on both contentions.
  • Timing: Petition was filed Feb. 23, 2015. Public notice was released Mar. 09, 2015. Comments were due April 06, 2015, and replies were due April 21, 2015.
• Edison Electric Institute and American Gas Association – CURRENTLY ON CIRCULATION
  • Petition
  • Public Notice
  • Summary: In their petition for expedited declaratory ruling, Edison Electric Institute (“EEI”) and American Gas Association (“AGA”) stated that “Utilities often need to provide information to customers about, among other things, planned or unplanned outages, repair work, service cancellation, service restoration, or energy efficiency. These calls or texts are always important, and are often critical.” EEI and AGA contended that the FCC’s prior express written consent rules could impede these functions. Accordingly, their petition requested that “the Commission confirm, under the Telephone Consumer Protection Act, that providing a telephone number to an energy utility constitutes ‘prior express consent’ to receive, at that number, non-telemarketing, informational calls related to the customer’s utility service, which are placed using an automatic telephone dialing system or an artificial or prerecorded voice.” The FCC sought comment on this suggested interpretation.
  • Timing: Petition was filed Feb. 12, 2015. Public notice was released Feb. 24, 2015. Comments were due Mar. 26, 2015, and replies were due Apr. 10, 2015.
• Citizens Bank, N.A.
  • Petition
  • Public Notice
  • Summary: In its petition, Citizens Bank, N.A. (“Citizens Bank”) stated that it was facing a lawsuit from a debtor who defaulted on her loans. The plaintiff there had held out her cell number as a business number in connection with her businesses. Citizens Bank called this number to collect the loans, and the plaintiff sued, claiming that she had not consented to the calls. Accordingly, the petition asked the FCC to answer the question: “where a called party takes purposeful and affirmative steps to release her cellphone number to the public for regular use in normal business communications – by, inter alia, listing the cell phone number in advertisements and internet sites as the sole contact number for her business – has the party provided prior express consent to receive non-telemarketing calls on that number?” The FCC sought comment on this question.
  • Timing: Petition was filed Jan. 16, 2015. Public notice was released Feb. 12, 2015. Comments were due March 16, 2015, and replies were due March 31, 2015.
• Other Items by Petitioners Claiming to Be Similarly Situated to Waiver Recipients
  • In addition to the above items, the FCC has recently issued a few public notices on petitions by numerous entities claiming that they are similarly-situated to other petitioners who received retroactive waivers with respect to the FCC’s advertising fax opt-out notification requirements. (See public notices 1, 2, and 3).  The FCC has also recently issued a public notice seeking comment on a petition by Papa Murphy’s Holdings, Inc., a pizza chain claiming to be similarly-situated to the parties that received waivers with respect to the FCC’s prior-express-written-consent requirements for automated telemarketing calls in the FCC’s July 2015 TCPA Order.  That public notice is available here.  Comments on the Papa Murphy’s petition are due Apr. 21, 2016, and replies are due May 06, 2016.

B. Other Petitions

• Kohll’s Pharmacy & Homecare Inc.
  • Petition
  • Public Notice
  • Summary:  Kohll’s Pharmacy & Homecare Inc. (“Kohll’s”) filed a petition for waiver seeking a declaratory ruling that certain faxes describing the health benefits of flu vaccination did not constitute unsolicited advertising under the TCPA.  Kohll’s contended that the faxes did not promote the sale of any good or service but rather provided health information.  Alternatively, Kohll’s sought a declaratory ruling that the faxes are exempt from the TCPA on the same reasoning underlying the exceptions for healthcare-related calls subject to HIPAA.  Finally, Kohll’s argued that exempting healthcare related calls, but not faxes, would violate the First Amendment as an overly burdensome restriction on commercial speech without a rational basis.  The FCC issued a public notice seeking comment on each of these arguments, as well as any other issues raised by the petition.
  • Timing: Petition was filed Mar. 25, 2016.  Public Notice was released Apr. 21, 2016.  Comments are due May 23, 2016, and replies are due June 06, 2016.
• Todd C. Bank
  • Petition
  • Public Notice
  • Summary: Noting that the TCPA includes a number of restrictions that apply to residential lines, attorney Todd C. Bank filed a petition for declaratory ruling arguing that these calling restrictions apply to any line registered as a residential telephone line—including those that are in fact used for business purposes by the subscriber.  Thus, Bank requested that the FCC clarify “that the [TCPA’s] restrictions . . . on unsolicited, pre-recorded telephone calls . . . apply to calls made to home-business telephone lines that are registered with the telephone-service provider as residential lines.”  Bank contended that there is no public policy basis on which to distinguish residential lines that are used for personal purposes from those that are used for business purposes, and requested that the FCC issue a declaratory ruling to that effect.  The FCC’s public notice sought comment on Bank’s requested action.
  • Timing: Petition was filed Mar. 07, 2016.  Public Notice was released Mar. 22, 2016.  Comments are due Apr. 21, 2016, and replies are due May 06, 2016.
• Joseph T. Ryerson & Son
  • Petition
  • Public Notice
  • Summary:  Joseph T. Ryerson & Son (“Ryerson”) used an electronic tool to send a fax that was then received by one of their customers via an electronic fax transcriber service.  Thus, the fax never existed in paper form.  Ryerson, stated that this transmission was effectively an email, and asked the FCC “to declare that  alleged ‘faxes’ that initiate in digital form and are received in digital form do not fall within the TCPA.”  Ryerson contended that the TCPA rules, on their face, preclude any application to purely electronic transmissions, and that applying the TCPA to such transmissions would raise vagueness concerns that would violate the First and Fifth Amendments.  The FCC sought comment on whether “faxes both initiated and received in digital form are beyond the Telephone Consumer Protection Act’s coverage (including restrictions on certain unsolicited faxes),” as well as on any other issues raised by Ryerson’s petition.
  • Timing:  Petition was filed on Nov. 4, 2015.  Public notice was released Nov. 24, 2015.  Comments were due Dec. 8, and replies were due Dec. 15.
• Lifetime Entertainment Services, LLC
  • Petition
  • Public Notice
  • Summary:  Lifetime Entertainment Services, LLC (“Lifetime”) placed an unsolicited, prerecorded call to a residential telephone line in order to inform the recipient that “Project Runway” had moved from Bravo to the Lifetime network.  The call resulted in a lawsuit alleging that the call was a telemarketing call.  Lifetime contended that it was an informational call, as it did not seek to sell any new services, and was simply intended to inform current subscribers of a new show available to them.  The FCC public notice stated that “Lifetime asks the Commission to clarify that a call to provide information about a service change is not made for a commercial purpose, that such informational calls are neither advertising nor telemarketing, and that these calls are therefore not prohibited by the TCPA and the Commission’s rules.  Alternatively, Lifetime asks the Commission to grant a retroactive waiver of section 64.1200(a)(3) of the Commission’s rules for the call sat issue in the related litigation, stating that removing such calls from liability would be consistent with the statutory purpose of the TCPA and Commission precedent, and that subjecting cable programmers to the burden and cost of litigation would discourage the flow of useful information to subscribers and viewers, contrary to the public interest.”  The FCC sought comment on these issues.
  • Timing:  Petition was filed on Dec. 11, 2015.  Public notice was released Feb. 05, 2016.  Comments were due on Mar. 07, 2016, and replies were due on Mar. 21, 2016.
• Broadnet Teleservices, LLC –  CURRENTLY ON CIRCULATION
  • Petition
  • Public Notice
  • Summary:  Broadnet Services, LLC (“Broadnet”) provides telephone outreach services for government entities.  It sought a declaratory ruling that “the TCPA rules do not apply to calls made by or on behalf of federal, state, and local governments when such calls are made for official purposes.” Broadnet argued that “[a]bsent such action, citizens that rely on their wireless phones as their primary, or only, means of telephone communication will be deprived of important opportunities to engage with their government that wired citizens currently enjoy.”  The FCC issued a public notice citing this argument and seeking comment on Broadnet’s petition.
  • Timing:  Petition was filed Sept. 16, 2015.  Public notice was released Sept. 31, 2015.  Comments were due Oct. 29, 2015, and replies were due Nov. 13, 2015.
• Anthem, Inc.
  • Petition
  • Public Notice
  • Summary:  Anthem, Inc. (“Anthem”) requested that “the Commission expressly except non-telemarking health care-related calls from the current restrictions that otherwise apply under the Telephone Consumer Protection Act.”  According to its petition, “Anthem makes telephone calls and sends text messages to its members to provide information which empowers them to be engaged in their own health care decisions.” Anthem’s petition goes on to state that these calls include, inter alia, “[c]alls to persons with identified chronic health conditions to help them manage those conditions . . . Calls to pregnant mothers to promote adequate prenatal care . . . Post discharge calls to patients to encourage compliance with recommended health care follow up measures.”  The FCC issued a public notice seeking comment on this proposal.
  • Timing:  Petition was filed June 10, 2015.  Public notice was released Aug. 31, 2015.  Comments were due Sept. 30, and replies were due Oct. 15, 2015.
• RTI International – CURRENTLY ON CIRCULATION
  • Petition
  • Public Notice
  • Summary:  RTI International (“RTI”) provides the federal government with research and survey data collection services.  It submitted a petition asking the FCC to “confirm that the TCPA does not restrict research survey calls made by or on behalf of the federal government.”  Specifically, it argued that the TCPA applies only to calls placed by a “person” and the federal government does not qualify as a “person” under the definitions contained in the TCPA.  The FCC sought comment on RTI’s interpretation of the TCPA.
  • Timing:  Petition was filed Sept. 29, 2014.  Public notice was released Nov. 19, 2014.  Comments were due Dec. 23, 2014, and replies were due Jan. 12, 2015.
• National Employment Network Association – CURRENTLY ON CIRCULATION
  • Petition
  • Public Notice
  • Summary:  National Employment Network Association (“NENA”) contacts Americans on behalf of federal government entities, including the Social Security Administration.  Noting that the contacts it facilitates are often crucial in helping recipients leave the welfare rolls, it argued that “the most cost-effective means of disseminating information of anon-commercial nature that is mandated by law and for the purpose of lifting people out of poverty and contributing to the economy is in the public interest and, therefore, allowable under the Commission’s rules.”  The FCC issued a public notice requesting comment on whether “a long-standing relationship between a beneficiary of federal benefits and a federal agency logically implies the beneficiary’s consent to receive autodialed and prerecorded non-telemarketing calls and text messages under the TCPA, and that such consent includes calls made by a public or private intermediary or associated third party that “stands in the shoes” of the federal government.”
  • Timing:  Petition was filed Aug. 05, 2014.  Public Notice was released Sept. 19, 2014.  Comments were due Oct. 20, 2014, and replies were due Nov. 03, 2014.
• Vincent Lucas
  • Petition
  • Public Notice
  • Summary:  Vincent Lucas, a consumer who allegedly received unsolicited telephone solicitations, requested “an  expedited  declaratory  ruling holding  that  a  person  is  vicariously  or  contributorily  liable  if  that  person  provides  substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates 47 U.S.C. §227(b) or (c).”  The FCC issued a public notice seeking comment on this request.  The FCC’s public notice also stated that “Lucas argues that the Commission has the authority to determine vicarious liability under the TCPA and that such liability should apply to those who assist telemarketers in violating the TCPA. In addition, Lucas makes the argument that recognizing vicarious liability for assisting illegal telemarketing will greatly assist in enforcement of the TCPA. Lucas asserts that the Commission can make the requested clarification without a separate rulemaking proceeding.”
  • Timing:  Petition was filed June 18, 2014.  Public Notice was issued July 09, 2014.  Comments were due Aug. 08, 2014, and replies were due Aug. 25, 2014.
• Acurian, Inc.
  • Petition
  • Public Notice
  • Summary:  Acurian provides clinical trial patient recruitment and retention solutions for the life sciences industry.  Its petition explains that “[a]mong other things, Acurian provides a service that matches individuals to pending clinical drug trials.”  To enable this service, Acurian places calls to consumers.  According to Acurian, “[t]hese telephone communications do not entail commercial solicitation or marketing of any kind; the sole purpose of these calls is to contact the individual and refer him or her to a local doctor who is participating in a clinical trial in which they are interested.  Acurian does not convey any information about the commercial availability of goods or services and does not solicit payment from the individuals it contacts.”  Accordingly, Acurian asked that the FCC clarify that “a telephone call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on prerecorded calls enacted as part of the Telephone Consumer Protection Act.”  The FCC issued a public notice seeking comment on that issue.
  • Timing:  Petition was filed Feb. 05, 2014.  Public notice was released Feb. 20, 2014.  Comments were due Mar. 24, 2014, and replies were due Apr. 08, 2014.