On September 9, 2014, the National Association of Attorneys General sent a letter signed by 39 state attorneys general to FCC Chairman Tom Wheeler seeking a formal opinion as to whether there are any “legal and/or regulatory prohibitions [that] prohibit telephone carriers from implementing call-blocking technology,” and, if such prohibitions exist, whether a carrier may

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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Already in May, the FCC Enforcement Bureau had proposed multi-million dollar NALs for cramming and TRS violations.  On May 8th, the FCC proposed a forfeiture for unlawful prerecorded messages (“robocalls”) sent to wireless phones.  What is most interesting, though, is that the FCC held the entity that facilitated the calls liable, not the parties on whose behalf the calls were made.
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With class action cases proliferating, the Federal Communications Commission (“FCC”) continues to receive petitions seeking guidance on the applicability of its rules to various calling or texting scenarios. In the latest example, the FCC issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed by TextMe, Inc. (“TextMe”). TextMe provides a free

The Federal Communications Commission (the “Commission” or “FCC”) seems to be opening the spigot a bit on its extensive backlog of Telephone Consumer Protect Act (“TCPA”) petitions. On March 27, 2014, the Commission granted, in part, two petitions for declaratory ruling from the Cargo Airline Association (the “CAA Order”) and GroupMe, Inc./Skype Communications S.A.R.L.

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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On January 22, 2014 the D.C. Circuit Court of Appeals issued a two-page per curiam decision dismissing a petition by DISH Network, LLC that challenged the FCC’s “guidance” on the interpretation of agency law in the context of Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (“TCPA”). In its May 9, 2013 Declaratory

New rules issued by the Federal Communications Commission ("FCC") last year are about to take effect. These rules will make it more difficult for businesses to make telemarketing calls and texts to wireless customers and to certain residential customers by requiring express written consent (1) to make telemarketing calls using an autodialer or prerecorded message

 In a move that appears aimed to maximize options for new Chairman Tom Wheeler when he assumes office, the FCC turned its attention again to its rules to address unauthorized charges on telephone bills, known colloquially as "cramming."  The FCC is asking parties to refresh the record in its docket considering rules for landline and mobile carriers to address cramming.  Parties are asked to address recent filings by state commissions seeking additional rules, particularly with respect to the extent to which cramming is a problem on wireless bills.  

The FCC has an inconsistent history in addressing cramming — it still does not have any required verification rules for placing charges on telephone bills, for example.  Yet the FCC has taken occasional enforcement actions, proposing significant fines or settling cases for significant amounts.  This public notice provides an opportunity for the FCC to clarify, for carriers and third-party providers alike, the extent of a service provider’s duties with respect to charges billed on telephone invoices.


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Jameson Dempsey co-authored this post.
In a ruling that FCC Commissioner Ajit Pai described as “a win for consumers and for innovative companies alike,” the FCC granted a petition for declaratory ruling filed by SoundBite Communications, Inc., finding that one-time text messages confirming a consumer’s request not to receive any future text messages do not violate the Telephone Consumer Protection Act of 1991 (“TCPA”).  The Order represents a significant victory for mobile marketing firms like SoundBite and companies conducting mobile marketing, which have been inundated  with actual and threatened class action lawsuits over such confirmatory messages.

Although the ruling is an important victory, the FCC’s rationale for permitting the messages is relatively narrow and not all confirmatory messages will be permitted.  Moreover, the FCC’s ruling in effect imposes a requirement that confirmatory texts be sent within five minutes of the consumer’s opt-out request.  Companies engaging in mobile marketing should review their practices carefully before sending additional confirmatory text messages in reliance on the FCC’s ruling.
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