On May 14, 2018, the FCC issued a Public Notice seeking comment on a number of issues regarding the proper interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent decision by the D.C. Circuit Court of Appeals to overturn most of the FCC’s 2015 Omnibus TCPA Declaratory Ruling.  Given Chairman Pai’s strong dissent from the 2015 Declaratory Ruling and his statement praising the D.C. Circuit’s findings regarding it, this comment cycle presents a valuable opportunity for parties who have been adversely affected by the uncertainty surrounding the TCPA in certain years to provide input to the FCC on how it should interpret the statute to best serve its intended purpose.

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On June 30, the Office of General Counsel for the Federal Communications Commission filed an amicus brief in the U.S. Court of Appeals for the Second Circuit urging the court to reverse a district court ruling that an individual consented to receiving debt collection calls by providing his cellular telephone number to an electric company for the purpose of disconnecting electric service on behalf of a deceased relative.  The brief was filed in response to a request from the court, which is currently considering an appeal filed by Albert Nigro, who contacted Niagara Mohawk/National Grid to disconnect electric service to the apartment of his recently deceased mother-in-law, and subsequently received at least 72 automated phone calls from a third-party debt collector attempting to collect an outstanding balance of $67 due on the account.

The Commission’s brief offers a narrow interpretation of consent under the TCPA.  Its approach has implications for telemarketers beyond the facts of the case at hand.
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Litigation under the Telephone Consumer Protection Act (TCPA) has exploded over the last few years.  During the course of such litigation, parties typically will seek the input of the Federal Communications Commission on issues of interpretation of the TCPA.  This may occur through a request from the court under the doctrine of primary jurisdiction, or, at times like this, through a request initiated by one of the litigants directly.  In the case below, a TCPA defendant is asking the FCC for relief in a case involving calls to mobile phones that previously were associated with a consenting subscriber, but which have been reassigned.
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