RECENT NEWS
FCC Chairwoman Rosenworcel Circulates Order to Classify
Ringless Voicemail Messages as Calls Under the TCPA
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which were withdrawn by the petitioners after comments were filed.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.
FCC Petitions Tracker
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.
Click here to see the full FCC Petitions
Tracker.
CASES OF NOTE
Second Circuit Court of Appeals Splits From Third Circuit On
TCPA Fax Cases Involving Paid Market Research Surveys
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
Defendant was in…
