On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and some of the highlights are below.

As to the TCPA’s definition of “automatic telephone dialing system” (ATDS or more commonly known as “autodialer”) litigation post-ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Commissioner correctly noted that the “‘fog of uncertainty’ . . . remains thicker than ever,” with numerous courts struggling to interpret the TCPA and issuing conflicting decisions. He characterized some decisions as “illogically [finding] the FCC’s 2003 and 2008 orders defining an ATDS to be controlling post-ACA.” And, he went on to remark that:

[T]hat just pales in comparison to the medley of courts that have chosen to ignore the DC Circuit [in ACA Int’l] and instead follow the 9th Circuit’s extremely misguided and breathtakingly expansive definition of ATDS [in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018)] as a device that stores numbers to be called, irrespective of whether they have been generated by a random or sequential number generator.


Continue Reading fore·shad·ow (verb). Be a warning or indication of (a future event): FCC Commissioner O’Rielly Speech Suggests What’s in Store for the TCPA

Last week, the Federal Communications Commission (“FCC”) issued a Public Notice seeking comment on a petition for an expedited declaratory ruling relating to how the Telephone Consumer Protection Act (“TCPA”) applies to the use of soundboard or avatar technology. Specifically, the FCC requests comment on whether “calls using recorded audio clips specifically selected and presented by a human operator in real-time, a tool generally referred to as ‘soundboard technology,’ do not deliver a ‘prerecorded message’ under the [TCPA].” Comments are due on March 15, 2019; the reply comment deadline is March 29, 2019.
Continue Reading FCC Public Notice Requests Stakeholders to Sound Off on Soundboard Technology

It has taken a while, but the FCC has finally realized that the Children’s Television Act (CTA or “Kidvid” as it is called in the industry) is more than somewhat out of date: The media world is not what it was when the CTA was passed by Congress 28 years ago. According to the FCC, among the other changes brought on by the advent of the Digital Age, children are engaging in less “appointment viewing” and in more on-demand, online and other non-broadcast content consumption. The FCC has concluded that the expansion of viewing outlets and the changes in children’s educational and entertainment options warrant a reexamination of some of its rules implementing the CTA. It has issued a Notice of Proposed Rulemaking (“NPRM”), has received comments and can be expected to act on the proposed changes in the next several months.

The NPRM advances several “tentative conclusions” related to the content that broadcasters may count toward satisfying the “Core Programming” requirement. Essentially, the FCC has defined Core Programming as programming that targets children under 13 as the intended audience. The definition will not be changed but the FCC has proposed eliminating several of the Core Programming criteria, specifically, the requirements that Core Programming be (1) at least 30 minutes in length; (2) regularly scheduled; and (3) identified as Core Programming within the content using the designation “E/I,” which stands for “Educational and Informational.” The NPRM is also seeking comments on whether to maintain or eliminate several other Core Programming and reporting requirements, including that (A) Core Programming be broadcast between 7:00 a.m. and 10:00 p.m.; (B) that broadcasters notify program guide publishers about Core Programming; and (C) that broadcasters file quarterly compliance reports with the FCC. Moving forward with the proposed reduction in paperwork associated with the CTA Rules should be a no-brainer; whether the prescriptive scheduling requirement will be changed is harder to predict.


Continue Reading Big Bird Goes Digital: The FCC Undertakes to Modernize Children’s Television

“Slamming and cramming” might sound more appropriate in professional wrestling than telecommunications, but it’s the Federal Communications Commission and not the WWE that’s making moves in this area. On June 7, the Commission approved new rules aimed at stopping both slamming and cramming by telecommunications carriers, which we’ve summarized below. On August 16, these new

Technology is present in nearly everything we do and not only in the form of a smartphone. Now, when people brush their teeth, turn on the car, or tune an instrument, there’s likely some form of digital technology at work. With all of these activities, it can be unclear when the user is manually performing the action versus when it’s become automated. Courts have struggled with this same issue while applying the Telephone Consumer Protection Act (TCPA) after the D.C. Circuit set aside the FCC’s interpretation of an automatic telephone dialing system (ATDS) in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). As we’ve outlined in previous blogs, ACA International clearly invalidated the ATDS standard from the FCC’s 2015 TCPA Order, but, since that decision, district courts have grappled with the validity of the FCC’s 2003 and 2008 predictive dialer rulings, which concluded that predictive dialers that dial from set lists of specific telephone numbers are autodialers.

While several courts have ruled on this issue, there still isn’t a consensus on the proper approach. Last week, however, the Northern District of Illinois issued a well-reasoned and detailed decision that may help guide that debate – Pinkus v. Sirius XM Radio, Inc., No. 1:16-cv-10858 (N.D. Ill. July 26, 2018). The court in Pinkus had to wrestle with the exact set of circumstances that ACA International has thrown into confusion: namely, whether predictive dialing technology qualifies as an ATDS if it does not randomly or sequentially generate the phone numbers to be called. The 2015 FCC Order that was struck down in ACA International, as well as previous FCC orders, included this type of technology under the definition of ATDS.


Continue Reading Predictive Dialer Prediction Comes True: Court Rules that ACA International Vacated Previous FCC Predictive Dialer Decisions and Holds that Predictive Dialers are Not Autodialers Under the TCPA

Most marketers are aware that the FCC has something to do with the regulation of computers and computing peripherals, products that are widely sold online.  Unfortunately, marketers sometimes do not realize that the FCC’s rules also apply to a host of household devices such as coffeemakers, electric razors, car battery chargers, jewelry polishing devices, and similar electronic products that are also widely sold online.  Even more problematic is that the FCC tends to take failure to comply with its rules governing these devices very seriously and can and does assess stiff fines for even innocent violations.
Continue Reading Keep the FCC on Your Radar

Following confusion in both the courts and the FCC, Congress is now looking to step in and resolve disputed provisions of the Telephone Consumer Protection Act (TCPA). As readers of this blog know, earlier this year in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the D.C. Circuit set aside the FCC’s interpretation of “automatic telephone dialing system” (ATDS) as it was defined in the FCC’s 2015 TCPA Order (2015 Order). In the same decision, the D.C. Circuit also vacated the 2015 Order’s approach to calling reassigned and wrong numbers. As a result, it’s now unclear what the relevant standard is for these provisions of the TCPA.

So far, courts have found addressing the fallout of the ACA Int’l decision to be Mission Impossible. They’re split as to whether the FCC’s prior 2003, 2008, and 2012 orders are still valid or whether the D.C. Circuit’s decision also vacated those rulings. One common question is whether all predictive dialers should be considered ATDS or if the definition should only encompass automatically dialed numbers that are randomly or sequentially generated. The District of Arizona, for example, has said that “this Court will not defer to any of the FCC’s . . . [earlier orders] regarding the first required function of an ATDS . . . .” Herrick v. GoDaddy.com, No. CV-16-00254, 2018 WL 2229131, at *7 (D. Ariz. May 14, 2018). See also Marshall v. CBE Group, Inc., No. 2:16-cv-02406, 2018 WL 1567852, at *4 (D. Nev. Mar. 30, 2018). The Northern District of Georgia, however, applied the 2003 Order in its decision on the issue. Maddox v. CBE Group, No. 1:17-cv-1909, 2018 WL 2327037, at *4–*5 (N.D. Ga. May 22, 2018). Meanwhile, the Southern District of Florida held that the FCC’s position is unclear and either interpretation of ATDS is acceptable. Reyes v. BCA Fin. Services, No. 16-24077, 2018 WL 2220417, at *9 (S.D. Fla. May 14, 2018). To sum it up, the ACA Int’l decision left courts confused as to what extent predictive dialers fall under the definition of ATDS and subsequently the TCPA.


Continue Reading Congress Takes TCPA Action: Clarifying or Confusing?

CommentsThe FCC is going back to the drawing board—and it wants some help.

Earlier this week, the Commission announced that it is seeking comments “on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision” of the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

As we have written previously, in March the D.C. Circuit issued its long-awaited ruling on the FCC’s 2015 Omnibus Telephone Consumer Protection Act Order (2015 Order) in which the Commission set out to resolve 21 requests for clarification about the TCPA and related rules and orders. The D.C. Circuit’s decision dealt a partial blow to the 2015 Order, setting aside the FCC’s interpretation of “automatic telephone dialing system” (“autodialer” or “ATDS”) as overly broad and vacating the agency’s approach to calling reassigned numbers—i.e., restrictions on calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The D.C. Circuit vacated in particular the FCC’s reading of the statute to permit a one-call safe harbor for callers to determine whether a number had been reassigned to a nonconsenting person. The court, however, did uphold the FCC’s conclusion that parties may revoke their consent through any “reasonable means” clearly expressing a desire to receive no further messages from the caller. It also upheld the scope of the Commission’s exemption for time-sensitive, healthcare-related calls.


Continue Reading FCC Seeks Comments on TCPA After D.C. Circuit Ruling

telemarketing lawsOn March 23, 2018, the FCC and FTC hosted a joint forum to discuss the issue of robocalls. Consisting of three panels and remarks from key leadership of both agencies, the event marked a significant step in agency cooperation to mitigate consumer frustration from unwanted calls. The panels focused on three issues: (1) challenges facing consumers and industry; (2) recent regulatory and enforcement efforts; and (3) tools and solutions for consumers. FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen delivered opening remarks, with FCC Commissioners Mignon Clyburn and Brendan Carr, as well as FTC Commissioner Terrell McSweeny, also speaking.

Panelists identified number spoofing as the biggest issue magnifying the robocall problem. As a result of spoofing, consumers have lost trust in answering the phone, leading to a significant rise in call completions not occurring. Telephone providers have attempted to combat the spoofing problem by screening calls, but there is skepticism as to the long-term viability of screening mechanisms for fear that robocallers will learn to circumvent screens and consumer trust might further erode due to the lack of transparency in what calls are being blocked. Businesses in particular have felt the frustration of lost consumer trust, and panelists claimed that legitimate business calls have declined by 20-30%. Representatives from the communications industry called for technology that would provide an intercept code for businesses to receive notice that their calls had been blocked, but stressed that transparency on the consumer side, too, was paramount.


Continue Reading This Argument Is No Longer in Service: Did FCC and FTC Drop the Issue of Reassigned Numbers as a Solution to Robocalls?

The FCC’s Sponsorship Identification Rule is a close, perhaps neglected cousin of the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements, i.e., its Native Advertising Guide. Nevertheless, the FCC’s latest enforcement action demonstrates how failure to follow the rule can result in penalties far larger than any imposed to date by the FTC. It also hints at the possibility that a single ad can result in dual liability for advertisers and broadcasters.

The Sponsorship ID Rule is fairly straightforward: if a broadcast station charges or accepts (or is promised) any money, service, or other valuable consideration in exchange for airing a piece of programming, then the broadcaster must disclose – at the time of the broadcast: (1) that the programming is “sponsored,” “paid,” or “furnished,” and (2) the identity of the sponsor. The Rule contains additional disclosure requirements for political ads, as well as “beneficial owner”-type provisions that require disclosure of the true sponsor in interest, rather than the name of any agent or middleman used to furnish the payment. A corollary to the Sponsorship ID Rule imposes a similar burden on sponsors to disclose to broadcasters when they have provided money, services or other consideration in exchange for the broadcast. 47 U.S.C. § 508.


Continue Reading FCC Revives Its Own Native Advertising Rule: Sponsorship Identification