Recent News
On February 2, 2022, FCC Chairwoman Rosenworcel announced that she has presented to her fellow Commissioners an order that will declare that technology that leaves “ringless” voicemails on consumer cell phones is subject to FCC robocalling restrictions. The order is described as ruling that ringless voicemails are calls under the TCPA and thus require prior express consent when sent to cellular telephone numbers. The Chairwoman’s proposal will be voted upon by the Commissioners “on circulation,” which does not establish an immediate deadline for FCC action. Unlike orders under consideration at Open Meetings, the text of a circulation item is not publicly released.
The Commission has received three petitions for declaratory ruling regarding ringless voicemail technologies, all three of which were withdrawn by the petitioners after comments were filed. The FCC News Release states that the FCC will rule upon All About the Message’s 2017 Petition for Declaratory Ruling regarding ringless voicemails. All About the Message withdrew that petition on June 20, 2017.
Consumer Groups Seek to Exclude “Scam” Calls and Texts from TCPA Consent Exemptions
On January 26, 2022, the National Consumer Law Center, Consumer Action, Consumer Federation of America, Consumer Reports, Electronic Privacy Information Center, National Association of Consumer Advocates, National Consumers League, Public Citizen, Public Knowledge, and U.S. Public Interest Research Group (collectively ‘Consumer Groups”) jointly filed an ex parte letter asking the FCC to clarify that prerecorded scam calls and automated texts do not fall within any exemption from the consent requirement for these calls and texts in 42 U.S.C. § 227(b). The Letter asks the FCC, in connection with finalizing its rules re-examining TCPA exemptions as required under the TRACED Act, rule that certain scam calls and texts are not exempt from the consent requirements of the TCPA. Although this Letter is styled as an ex parte, it in effect seeks a declaratory ruling that the FCC’s rules do not extend to these types of calls.
In the Letter, the Consumer Groups ask the FCC to conclude that the following types of calls cannot fall within any TCPA exemptions:
- Prerecorded scam calls —calls made with deception, to defraud, to cause harm, or to wrongfully obtain anything of value from the recipient—are not exempt from the requirements for consent for prerecorded calls covered by either 47 U.S.C. § 227(b)(1)(A) or (B);
- Automated scam texts— texts made with deception, to defraud, to cause harm, or to wrongfully obtain anything of value from the recipient—are not exempt from the requirements for consent required by 47 U.S.C. § 227(b)(1)(A).
See our FCC Petitions Tracker for more information on this Letter.
FCC Appoints New Bureau Chiefs for Consumer and Enforcement Bureaus
On January 31, 2022, FCC Chairwoman Rosenworcel announced several staff changes among the Commission’s subject matter Bureaus. These appointments are the first since Rosenworcel was confirmed as the permanent Chair of the Commission. Two of the changes affect bureaus with substantial responsibilities over TCPA matters.
First, Chairwoman Rosenworcel appointed Alejandro Roark to replace Patrick Webre as Chief of the Consumer and Governmental Affairs Bureau, which handles TCPA rulemaking and declaratory ruling matters. Roark served as the Executive Director for HTTP, a CEO Roundtable of national Latino civil rights organizations working in partnership to promote access, adoption, and the full utilization of technology and telecommunications resources by the Latino community across the United States.
Second, Chairwoman Rosenworcel appointed Loyaan Egal as Acting Chief of the Enforcement Bureau, replacing Rosemary Harold. Most recently, Egal served as a Deputy Chief in the Foreign Investment Review Section (FIRS) of the U.S. Department of Justice’s National Security Division. In that role, he oversaw FIRS’s role in representing the Attorney General as the Chair of the “Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector,” which is also known as “Team Telecom,” pursuant to Executive Order 13913. Prior to that, Egal served in the FCC’s Enforcement Bureau, where he established and led the Universal Service Fund Strike Force (now known as the Fraud Division), the FCC’s first white collar fraud unit.
Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA.
Number of Petitions Pending
- 30 petitions pending
- 1 petition for reconsideration of the rules to implement the government debt collection exemption
- 1 application for review of the decision to deny a request for an exemption of the prior express consent requirement of the TCPA for “mortgage servicing calls”
- 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
New Petitions Filed
- On January 26, 2022, the National Consumer Law Center and other consumer groups filed an ex parte letter requesting that the FCC expressly exclude prerecorded scam calls and automated texts from the exemptions from the consent requirement for these calls and texts in 42 U.S.C. § 227(b).
- On February 3, 2022, Inovalon filed an ex parte letter asking the FCC to rule on its 2018 Petition for Declaratory Ruling regarding faxes that do not include “advertising.”
Upcoming Comments
Decisions Released
- As of February 2, 2022, the FCC is considering an order that will deny All About the Message’s 2017 Petition for Declaratory Ruling regarding ringless voicemails. The order is described as ruling that ringless voicemails are calls that require prior express consent when sent to cellular telephone numbers.
Cases of Note
The Second Circuit Court of Appeals recently affirmed a lower court’s decision holding that sending a fax invitation to take part in a market research survey in exchange for money does not constitute an “unsolicited advertisement” under the TCPA. According to the Court, “[f]axes that seek a recipient’s participation in a survey plainly do not advertise the availability of [any property, goods, or services]” as required by the TCPA and “therefore cannot be ‘advertisements’ under the TCPA.” That decision creates a split with the Third Circuit on the scope of an advertisement under the TCPA.
Plaintiff, a medical business, filed a putative class action against Defendant, a market research company, after allegedly receiving “two unsolicited faxes seeking participants in market research surveys[.]” Defendant filed a motion to dismiss, arguing that even if unsolicited, a “faxed invitation to participate in a market research survey does not constitute an ‘unsolicited advertisement’ under [the TCPA].” The lower court agreed and dismissed the action. Bruce E. Katz, M.D., P.C. v. Focus Forward LLC, 532 F. Supp. 3d 170, 180 (S.D.N.Y. Apr. 6, 2021).
The Second Circuit affirmed. In doing so, it expressly declined to follow a recent Third Circuit decision that similar faxes are advertisements because “an offer of payment in exchange for participation in a market survey is a commercial transaction, so a fax highlighting the availability of that transaction is an advertisement under the TCPA.” In that case, the Third Circuit reversed the lower court’s dismissal, finding that the such solicitations were for services within the TCPA. Fischbein v. Olson Research Group, 959 F.3d 559 (2020). The Second Circuit disagreed, holding that “[t]he notion that such faxes might advertise the availability of a ‘service’—i.e., of the recipient’s participation in a survey—contorts the ordinary meaning of the [TCPA] too far.”
The plain language of the TCPA defines “unsolicited advertisements” as “materials ‘advertising the commercial availability or quality of any property, goods, or services.’” Relying on that definition, the Second Circuit concluded that the definition does not include “‘an opportunity,’ nor communications advertising the availability of transactions that are ‘commercial in character.’” In contrast, the Fischbein court relied on an encyclopedia definition of “advertisement” to find that “an offer of payment . . . transforms. . . market surveys into advertisements .’” 959 F.3d at 568.
The Second Circuit also cited the TCPA’s legislative history and the statute’s implementations by the FCC to support its holding, finding both that language from a House committee recommendation and FCC regulations affirmatively sought to exclude “‘research, market surveys . . . or similar activities’ from liability under the statute.”
Thus, the Court affirmed the district court’s decision, holding that a “faxed invitation to participate in a market research survey in exchange for money” is not an “advertisement” under the TCPA.
Bruce Katz, M.D., P.C. v. Focus Forward, LLC, No. 21-1224-cv, 2022 WL 52914 (2d Cir. Jan. 6, 2022).
District Court Dismisses TCPA Action and Clarifies Extent of Safe Harbor Provision
The Western District of Washington issued an opinion granting summary judgment to Defendant in a TCPA case based on two independent bases: valid consent and compliance with the TCPA’s Safe Harbor Provision. In so holding, the Court found that no reasonable jury could find that plaintiff did not consent to being called, and the claim must also fail, on the independent basis that…
