TCPA FCC Petitions Tracker - February 2022

Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”).  With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties.  These petitions can be primary jurisdiction referrals or be presented directly by a litigant in a TCPA action.  The FCC currently has a number of petitions pending related to TCPA interpretation.  The tracker below briefly summarizes each petition and the issues presented in them.

New and Noteworthy

Awaiting Decision (Items on "Circulation")

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Seeking to Establish or Modify Exemptions to TCPA Consent Requirements

• HIS Markit Ltd, a consumer outreach provider retained to provide recall notices in the Takata airbag litigation, asked the FCC to confirm that motor vehicle safety recall-related communications are made for emergency purposes and therefore fall under the TCPA’s public safety exception.  IHS Markit argues that non-telemarketing motor vehicle safety recall notices provide critical, time-sensitive information to consumers and are exempted from the TCPA’s prior express consent requirements as calls “made for emergency purposes.”  IHS Markit requests that the FCC declare that non-telemarketing calls related to motor vehicle safety recalls, including, for example, those calls made to address certain recalls of vehicles equipped with Takata airbag inflators, may be placed to wireless numbers even absent prior consent from the subscriber.
• On October 4, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1023) seeking comment on the petition.  Comments were due on November 5, 2018 and reply comments were due on November 20, 2018.

• The Federal Housing Finance Authority (FHFA) seeks clarification from the FCC that the interpretation of the TCPA set forth in the Commission’s 2016 Blackboard Declaratory Ruling is also applicable to calls made by mortgage servicers to borrowers during and in the wake of emergencies such as Hurricanes Harvey and Irma.  The request notes that “FHFA’s regulated entities need to contact borrowers immediately where they are impacted by declared disasters— regardless of express consent— to provide important information about mortgage assistance that would be consistent with [an] exception [to the prior express consent requirement].”  Examples of such communications might include notices that payment obligation is suspended, warnings of potential fraud scams, and information about mortgage loan modification or other relevant matters provided by a reputable service provider.
• On November 17, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-1121) seeking comment on the petition.  Comments were due on December 1, 2017 and replies were due on December 8, 2017.

• The Credit Union National Association (CUNA) “requests that the Commission exempt from the TCPA’s “prior express consent” requirement informational calls made by credit unions to wireless numbers in one of two circumstances: (1) the wireless subscriber has an established business relationship with the credit union; or (2) the calls are in fact not charged to the called party, for example, because the called party’s wireless plan has unlimited minutes and texts.”  CUNA suggests that the exemption would be applicable only to calls that provide information such as “opportunities for members to address an outstanding debt before incurring additional fees; account balance and overdraft alerts; possible security breaches of members’ personal and financial information; and payment card usage and fraud alerts,” as well as “calls and texts from credit unions concerning credit union policy, voting, or financial education material.” 
• To minimize potential privacy concerns, CUNA proposes that credit unions that make calls or send texts pursuant to the requested exemption would “provide an easy to use opt-out mechanism” and comply with the following conditions: (1) Calls and text messages must identify the name of the credit union and include contact information for the credit union (for voice calls, these disclosures would need to be made at the beginning of the call); (2) Each credit union shall send or place only one call or text message per day, up to a maximum of three calls or text messages combined per week from a specific credit union (unless the call or text is also exempted based on the free-to-end-user exemption for certain communications from financial institutions or the BBA amendment concerning the collection of federally-backed debt); and (3) Credit unions relying on this exemption must offer the party being contacted an easy to use and effective ability to opt out of receiving future autodialed or prerecorded or artificial voice calls and text messages, which the credit union will honor.
• CUNA claims that this relief is needed to “eliminate the antiquated distinctions between informational calls made to residential lines and those made to wireless subscribers.”  According to CUNA, the FCC has broad authority to adopt the requested exemption under the TCPA even though such an exemption is not expressly authorized under the statute, and that the FCC has exercised similar authority in adopting other TCPA exemptions.  It also claims that the requested exemption aligns with guidance from the CFPB regarding communications with distressed and financially vulnerable consumers.
• On October 6, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-798) seeking comment on the petition.  Comments were due on November 6, 2017 and replies were due on November 21, 2017.

• Great Lakes Higher Education Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Higher Education Assistance Agency, and the Student Loan Servicing Alliance seek reconsideration of the rules adopted by the FCC on August 11, 2016 to implement the government debt collection call exemption to the TCPA adopted as part of the Bipartisan Budget Agreement Act of 2015. In particular, the parties challenge the Commission's decision to impose a three-call-per-month limit, as well as the limitation of calls solely to the debtor, as being unsupported by the statute and contrary to Congress's intent in adopting the exemption. They also generally challenge the FCC's interpretation of its rulemaking authority as impermissibly broad.

• The joint petitioners seek clarification from the FCC regarding certain statements in the 2015 Omnibus TCPA Order related to non-telemarketing healthcare calls.  Specifically, the petitioners have asked the FCC to issue a declaratory ruling and/or clarify two items: (1) that the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term “healthcare provider” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA covered entities and business associates.”  The petitioners assert that these clarifications are necessary to harmonize the TCPA and HIPAA, and point out that the FCC has previously looked to HIPAA for guidance on how to interpret healthcare calls under the TCPA.
• On August 19, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-947) seeking comment on the petition.  Comments were due on September 19, 2016 and replies were due on October 4, 2016.

• The American Bankers Association seeks a reconsideration and modification of the exemptions granted to financial institutions in the Commission’s 2015 TCPA Declaratory Ruling and Order. The exemption permits financial institutions to send automated, free-to-end-user calls and texts to mobile devices concerning potentially fraudulent transactions, breaches of customers’ personal data, remediation measures to prevent identity theft, and notification of money transfers. However, the exemption permits calls and texts only to “the wireless telephone number provided by the customer.” The ABA argues that this “provided by” requirement limits the value of the exemption and that the order should be modified to read “exempted calls and texts may be sent only to affected customers and money transfer recipients.”
• Broadnet asserts that local governments need not be “sovereign” to be excluded from the definition of “person” under the TCPA.  The Petition references the decision in Barr v. American Association of Political Consultants, maintaining that “for the same reason the Supreme Court determined that the TCPA does not apply to the federal government—a determination made with no mention of ‘sovereign’ status, only the text of the statue—the TCPA is also best understood as not applying to any other levels of government.”  Broadnet also suggests that the FCC should consider the precedents of potentially analogous legislation. The Petition refers to the origin of the TCPA and notes the clear focus on telemarketing and solicitation.  Broadnet argues that this focus “illustrates that the purpose of the TCPA was not to impede communications between citizens and their government.”

Petitions Relating to Obtaining or Revoking "Prior Express Written Consent"

• Paul Armbruster filed a petition for declaratory ruling or rulemaking asking the Commission to conclude that consumers have an absolute right to revoke their consent for informational text messages where the business was not required to obtain prior express written consent. Mr. Maupin is seeking to revoke consent for text messages from his wireless service provider, AT&T, that confirm that he made a payment for his service. AT&T told Mr. Maupin that “the texts are covered by the wireless carrier exemption, which allows wireless carriers to contact their own customers, regardless of whether the customer has provided express consent or not.”
• On July 18, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-671) seeking comment on the petition.  Comments were due August 19, 2019, and replies were due September 3, 2019.

• Patrick Maupin filed a request that the Commission: (1) “[c]larify that the purchase of an automobile at retail from a car dealer does not automatically create an [established business relationship (“EBR”)] between the automobile purchaser and a third-party provider of a radio subscription service,” which would permit the radio subscription service provider to call the purchaser even if that purchaser is registered on the National Do-Not-Call Registry; (2) clarify that Sirius XM “would have known how to request clarification on this issue and is not entitled to any safe harbor based on possible confusion about its responsibilities”; and (3) “[c]larify that the Commission’s regulations and interpretive discussions that put the burden of proof regarding the EBR on the telemarketer and that require telemarketers to be able to show clear and convincing evidence of the EBR mean that any telemarketer should easily be able to provide such call data to prove its case in discovery, and that any contentions made by a telemarketer that it would be too costly to provide affirmative per-consumer EBR proof because of the millions of calls made by it or on its behalf is a problem of the telemarketer’s own making that should not shield it from liability or responsibility for its actions.”
• At the time Mr. Maupin filed his petition, Sirius XM was fighting a class action law suit related to calls placed to individuals on the National Do Not Call List.
• On June 28, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-601) seeking comment on the request for clarification.  Comments were due on July 29, 2019, and replies were due on August 13, 2019.

• The petitioners are seeking a ruling that life insurance agents and brokers are permitted to call their customers while the life insurance policies sold by servicing agents are in effect and for a period of 18 months after the policies expire based on an established business relationship between life insurance servicing agents and their customers.
• On July 6, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-707) seeking comment on the petition. Comments were due on August 6, 2018 and replies were due on August 21, 2018.

• Two consumer petitioners are seeking to reverse two FCC interpretations of the “prior express consent” provision of the TCPA.  First, the petitioners challenge a 1992 order in which the Commission determined that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  Second, the petitioners question a 2008 Commission order which concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.”  The petitioners claim that the FCC contravened Congressional intent when it adopted these two orders by improperly reading an implied consent provision into the TCPA.  As such, they seek a declaratory ruling or a rulemaking that would result in the following: (1) overturning previous interpretations of the prior express consent provision such that implied consent may be given in certain circumstances; and (2) adoption of a uniform requirement to satisfy the prior express consent requirement for both cellular and residential telephone numbers.
• On February 8, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-144) seeking comment on the petition.  Comments were due on March 10, 2017 and replies were due on March 27, 2017.

• MMT seeks a declaratory ruling to clarify that neither the TCPA nor the FCC’s July 2015 Omnibus order “require a party transmitting a text message to create or make available to consumers a specific or particular method by which a consumer may revoke prior express consent to be texted, including bilateral reply “STOP” text messaging functionality.”  The petition also asks the Commission to clarify that a “reasonable method” of revoking consent “must, at a minimum, be a method that actually reaches the texting party.”  MMT is a text broadcaster, and claims that many of its licensees are facing TCPA litigation, in part because MMT’s system was not previously set up for bilateral text messaging functionality such that a text recipient could revoke consent by texting the word “STOP.”  MMT argues that nothing in the TCPA mandates that a texting party provide consumers any specific or particular method to revoke consent, so long as the method employed is reasonable.
   

Petitions Relating to Automatic Telephone Dialing Systems (ATDS)

• The U.S. Chamber of Commerce Institute for Legal Reform and 17 co-petitioners are seeking a declaratory ruling that (1) to be an “ATDS,” equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention; and (2) only calls made using actual ATDS capabilities are subject to the TCPA.  The petition was filed in response to the D.C. Circuit’s decision to overturn the FCC’s interpretation of ATDS in the 2015 Omnibus TCPA Order, and argues “the court provided a logical roadmap for how the Commission should interpret ATDS.”
• On May 14, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-493) seeking comment on the petition.  Comments were due on June 13, 2018 and replies were due on June 28, 2018.

Petitions Relating to "Junk" Faxing Rules

• Cin-Q Automobiles, Inc. filed an Application for Review, asking the FCC to reverse the Akin Gump Declaratory Ruling.  In the Akin Gump Ruling, the FCC concluded that “a fax broadcaster is solely liable for TCPA violations when it engages in deception or fraud against the advertiser.” According to Cin-Q, the Ruling does not adequately address the precedents established by the 2003 and 2006 Commission Orders, which found fax broadcasters to be “jointly and severally liable” for TCPA violations.

• Anderson + Wanca filed an Application for Review, asking the FCC to consider reversing the Ryerson Declaratory Ruling. According to Anderson + Wanca, “the Commission should reverse the Ryerson Bureau Order under Rule 1.115(b)(2) because its reasoning regarding ‘online fax services’ is in conflict with the statute, regulations, case precedent, and established Commission policy, and is based on erroneous factual findings.”  More specifically, the Application questions whether the equipment referenced in the Ryerson decision as an online fax service has the requisite capacity to be a telephone fax machine.  Anderson + Wanca also argue that the Amerifactors Declaratory Ruling, the decision cited as the primary reason for granting the Ryerson Petition, was based on a mistaken understanding of the TCPA guidelines and thus warrants Commission review

• Best Doctors, Inc., publisher of a “Best Doctors in America” list, seeks a declaratory ruling that faxes seeking verification of contact information and the operational status of an office are not “advertisements” within the meaning of the Junk Fax Protection Act of 2005.  Best Doctors states that, as part of its verification process of doctors recommended for the List, it faxes to the doctor’s office an information form verifying the doctor’s contact information and whether the doctor is continuing to see new patients.  A copy of the form used is provided as part of the petition.  Best Doctors contends that the verification form is not “advertising” under the Junk Fax Protection Act because it does not offer the “commercial availability or quality of any property, goods or services” of Best Doctors, Inc.  It seeks a declaratory ruling to resolve conflicting court decisions concerning whether information beyond the fax itself can be considered to determine if a fax is an “advertisement.”  Best Doctors notes that petitions filed by Inovalon, Inc. and M3 USA Corporation raise similar questions concerning the meaning of an “advertisement” under the statute.
• On December 21, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1296) seeking comment on the petition.  Comments were due on January 25, 2019 (but extended to January 30 due to the federal shutdown) and replies were due on February 8, 2019.

• Inovalon is a contractor of multiple regional and national “health plans” for which it aggregates consumer health data.  To collect this data, the company contacts healthcare providers to obtain patients medical records through a variety of channels, including faxing.  Inovalon was recently sued by a medical provider to whom it sent a fax requesting medical records and informing the recipient about its “no cost” collection and digitization services.  In its petition, Inovalon has asked the FCC to declare that: (1) Faxes sent by a health insurance plan’s designee to a patient’s medical provider, pursuant to an established business relationship between the health plan and provider, requesting patient medical records are not advertisements under the TCPA; and (2) Faxes that offer the free collection and/or digitization of patient medical records, and which do not offer any commercially available product or service to the recipients are not advertisements under the TCPA.
• On February 23, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-180) seeking comment on the petition.  Comments were due on March 26, 2018 and replies were due on April 10, 2018.
• On March 9, 2021 Inovalon filed a letter requesting prompt action on its petition in response to new developments in class action litigation.
• On February 3, 2022, Inovalon again requested prompt action on its petition.  Inovalon stated that the court, in denying in August 2021 a motion to lift the stay “expressed its unease with the length of time that Inovalon’s Petition has been pending at the Commission” and ordered a joint status report every three months, with the next report due on February 17, 2022.  Inovalon asserts that its petition is “overdue” for a decision. 

• M3 USA Corporation is a third-party provider of qualitative and quantitative market research surveys focused on healthcare-related topics.  One of the methods M3 uses to “facilitate participation in its blinded market research surveys” is to send invitations via fax to several types of healthcare professionals.  According to the petition, “every market research survey conducted by M3 is reviewed and analyzed to ensure that the surveys involve only opinion collection and not advertising or marketing.”  However, at the time M3 filed its petition, it was fighting a TCPA class action suit related to faxes the company sent in connection with its surveys.
• ​M3 has asked the Commission for a declaratory ruling which includes the following: (1) there is no presumption under the TCPA that faxes sent by for-profit businesses are pretexts for advertisements; (2) informational faxes are not pretexts for advertisements under the TCPA unless the transmission promotes specific, commercially-available property, goods or services to the recipient of the fax; (3) market research surveys do not constitute property, goods or services vis-à-vis the  persons taking the surveys under the TCPA; and (4) Invitations to participate in market research surveys are not advertisements under the TCPA unless commercially-available property, goods or services are promoted in the fax itself or during the survey itself.  According to the petition, such declarations would be consistent with FCC precedent and guidance with regard to advertising and surveys, and is necessary to resolve uncertainty in the courts about whether fax transmissions like those sent by M3 are actually pretexts for advertising.
• On March 28, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-288) seeking comment on the petition.  Comments were due on April 27, 2017 and replies were due on May 15, 2017.

• RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose facilities or services are used by a third party content generator is not itself the "sender" of a facsimile, for purposes of the TCPA’s prohibition against sending unsolicited advertisements by facsimile; and (2) de minimis promotional phrases contained in otherwise bona fide informational, transactional or even another party's unsolicited fax advertising communications do not constitute “unsolicited advertisements” in violation of the TCPA.  Alternatively, RingCentral has asked the Commission to clarify that in certain limited circumstances fax broadcaster “senders” can rely on third party “consent” for sending de minimis promotional information along with a facsimile that is otherwise lawfully sent by the fax broadcaster's customer to a third party recipient. 
• RingCentral filed its petition in part because it has been named as a defendant in a class action lawsuit alleging TCPA violations based on fax advertisements it sent to third party recipients on behalf of its customers.
• On July 29, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-863) seeking comment on the petition.  Comments were due on August 29, 2016 and replies were due on September 13, 2016.

• The petitioner, an attorney with a home-based business, has asked the Commission to clarify that the rules prohibiting robocalls “apply to calls made to home-business telephone lines that are registered with the telephone-service provider as residential lines.”  He argues that such a clarification would be consistent with the language of the TCPA which states that the robocall provision of the Act applies to “any residential telephone line.”  He further asserts that this interpretation would be consistent with prior statements by the FCC on this issue. 
• At the time Mr. Bank filed his petition, he was appealing a dismissal by the U.S. District Court for the Eastern District of New York of his class action lawsuit for TCPA violations.  Following submission of his petition, the FCC filed an amicus curiae brief in support of Mr. Bank’s request to stay the appellate case pending the Commission’s disposition of his FCC petition.
• On March 31, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-341) seeking comment on the petition.  Comments were due on May 2, 2016 and replies were due on May 17, 2016.

• Vincent Lucas asks for 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).
• At the time Mr. Lucas filed his petition, he was involved in a lawsuit in which he alleged that three companies and two individuals “provided substantial assistance to several telemarketers while knowing that those telemarketers were engaged in practices that violate the TCPA.”  In his petition, Mr. Lucas claims that the magistrate judge in the litigation misinterpreted a former FCC ruling on vicarious liability and is planning to dismiss his vicarious and contributory liability claims.  
• On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-976) seeking comment on the petition.  Comments were due on August 8, 2014 and replies were due on August 25, 2014.