On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers. The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent. Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns. Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision. While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed. Now the Supreme Court is poised (potentially) to resolve that dispute.

Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA

On July 6, 2020, in a 7-2 decision, the Supreme Court upheld the constitutionality of the TCPA, but severed as unconstitutional the government debt exception. William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020). Our preview of the Supreme Court’s consideration of the Barr case can be found here and our summary of the oral argument can be found here.

Continue Reading Supreme Court Upholds Constitutionality of the TCPA

Incumbent earth stations operating in the 3700-4000 MHz range are entitled to have eligible space station operators provide a turnkey solution to transition them out of the band to the upper 200 megahertz of the 3.7-4.2 GHz Band. All of an earth station’s actual, reasonable, and necessary transition costs, for such transitions are reimbursable. As an alternative to having the space station operator conduct the transition, earth station operators may choose to accept a pre-determined per-earth station lump sum – still being worked on by the Federal Communications Commission’s (“FCC’s”) Wireless Telecommunications Bureau – for all their earth stations as sole compensation for moving out of the band themselves regardless of what solution is pursued after the transition, including moving to another band or off the radiofrequency spectrum altogether. (Previously, we covered the Commission’s schedule for the C-Band transition in detail.) The trick, however, is that, to qualify for reimbursement or the lump sum option, the earth stations must be “incumbent.” On Monday, July 6, 2020, the International Bureau (“Bureau”) issued a preliminary list of incumbent earth stations that would qualify for reimbursement or the lump sum. The Bureau, in the accompanying Public Notice, provided ten (10) days for interested persons to comment on the list, until Thursday, July 16.

Continue Reading C-Band Earth Stations: The FCC Made the List; It’s Worth Checking It Twice

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

Continue Reading COVID-19: What Communications Service Providers Need to Know – July 6, 2020

The FCC is moving full steam ahead this summer with a jam-packed agenda for its next open meeting, scheduled for July 16, 2020. Headlining the meeting is the creation of the National Suicide Prevention Lifeline, establishing 988 as the 3-digit dialing code for the suicide and mental health crisis hotline. All telecommunications carriers and VoIP providers would be required to implement 988 on their networks by July 16, 2022. The FCC continues to move forward on eliminating unwanted and illegal robocalls, planning to carve out safe harbors from liability for call blocking based on reasonable analytics and seeking comment on any additional obligations for blocking providers. The supply chain rulemaking would adopt the Commission’s prohibition on using universal service funds to support equipment or services provided by identified companies posing a national security threat, and propose further requirements for securing communications networks. The agency also plans to affirm and build upon vertical location requirements for enhanced 911 location accuracy and to establish procedures for enhanced broadband mapping and data collection. In addition, the agenda includes items to modernize the leased access rate formula and streamline and update the priority service program rules for emergency workers.

While FCC action historically dwindles going into an election year, the July agenda shows no signs of slowing down on the Commission’s main priorities. You will find more details on the most significant July meeting items after the break:

Continue Reading FCC Previews a Jam-Packed July Open Meeting with National Suicide Prevention Lifeline, Call Blocking, and Supply Chain Items Leading the Agenda

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

Continue Reading COVID-19: What Communications Service Providers Need to Know – June 29, 2020

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the core questions regarding the definition of an autodialer and consent requirements that were remanded two years ago in ACA International v. FCC, they may signal an effort to clean up TCPA issues in what is expected to be the waning months of FCC Chairman Pai’s tenure at the Commission.

In the first ruling, P2P Alliance, the Bureau ruled that an automatic telephone dialing system (“ATDS”) is not determined by whether the equipment has the capability to send a large volume of calls or texts in a short period of time. Instead, the Bureau, while recognizing that the Commission’s interpretation of the ATDS definition remains pending, ruled that “whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.” The Bureau also provides an illuminating discussion of the so-called “human intervention” element of prior FCC statements regarding autodialers.

In the second ruling, Anthem, Inc., the Bureau denied a petition to exempt certain healthcare-related calls from the TCPA’s consent requirements. In this order, the Bureau breaks less new ground and instead reiterates that prior express consent must be obtained before a call (or text) is made and that the supposed value or “urgency” of the communication does not necessarily make it permissible.

Besides these two petitions, the Commission has nearly three dozen petitions pending before it on a variety of matters relating to exemptions from the TCPA’s consent requirements, the collection and revocation of consent, the “junk fax” provisions, and other questions raised by the flood of TCPA class action litigation in the last five years. If the FCC begins addressing these other pending petitions, the course of TCPA class action litigation could change significantly.

Continue Reading Beginning of a TCPA Clean-Up? FCC Sets Another Robocall Blocking Item for Vote While Addressing Two of Nearly Three Dozen Pending Petitions

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

Continue Reading COVID-19: What Communications Service Providers Need to Know – June 22, 2020

In the most recent episode of Kelley Drye’s Full Spectrum podcast, Partner John Heitmann and Special Counsel Denise Smith discuss the COVID-19 Telehealth Program. The episode covers healthcare provider eligibility criteria, funding coverage, and key application considerations. They also provide an update on awards granted. At the time of the recording, the FCC had awarded a total $104.98 million over nine funding rounds, to 305 health care providers, representing about half of the money allocated for the Telehealth Program. This podcast follows our April 28th webinar on the Telehealth Program, a recording of which is available here.

Click here to listen to this podcast episode and subscribe to Full Spectrum.

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

Continue Reading COVID-19: What Communications Service Providers Need to Know – June 15, 2020