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TCPA Regulatory Update: FCC Evaluates Comments Received in Several TCPA Proceedings

The Federal Communications Commission (“FCC” or “Commission”) is busy evaluating scores of comments and reply comments it received in several ongoing TCPA proceedings in the past month. First is the Public Notice, covered in the June TCPA Digest, in which the FCC sought comment on several central TCPA elements in light of the DC Circuit’s decision in ACA International v. FCC. The Commission received over 100 substantive comments and reply comments. Industry stakeholders generally supported interpretations that would limit the TCPA’s reach, such as narrowing the definition of an “automatic telephone dialing system.” They hoped such reforms would reduce the number of class action lawsuits brought against companies attempting to make legitimate business calls. Commenters included stakeholders from the financial, retail, automotive, health care, restaurant, insurance, and news industries, reflecting the broad reach of the TCPA. Consumer advocates and individual commenters, on the other hand, urged the FCC not to relax TCPA protections, and said that doing so would leave consumers vulnerable to even more unwanted robocalls. The Commission also received more than 300,000 “express” comments, mostly in support of “the strongest possible consumer protections against unwanted robocalls.”

Second, the FCC is evaluating comments and reply comments on a Second Further Notice of Proposed Rulemaking seeking input on the adoption of a reassigned numbers database. Note that in ACA International v. FCC, the D.C. Circuit struck down the portion of the FCC’s 2015 Order that granted only a one-call safe harbor for calls to reassigned numbers, finding it arbitrary and capricious — however, the D.C. Circuit stated that the existence of a reassigned numbers database would bear on the reasonableness of calling reassigned numbers. Many industry commenters favored the creation of a reassigned numbers database accompanied by a safe harbor from liability for businesses that check their marketing lists against it. Some industry commenters, however, were less enthusiastic, expressing concerns about the costs to create and maintain such a database, and arguing that even an optional database could create a de facto standard for reassigned numbers liability. Commenters also suggested that the effort to create a reassigned numbers database should move forward in parallel with, and not to the exclusion of, the Commission’s broader TCPA reform efforts examined in the proceeding above.

Finally, the Commission is evaluating comments on a Public Notice regarding the Petition for Declaratory Ruling filed by Insights Association, Inc. and the American Association for Public Opinion Research last year. Petitioners asked the Commission to clarify several areas under the TCPA, including that “communications are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations.” The petition also sought clarification on dual-purpose communications and survey, opinion, and market research studies. Less than a dozen substantive comments and reply comments were filed on this petition.

Several comment periods are also currently open on Public Notices concerning various TCPA issues. On June 14, the Commission released a Public Notice seeking comment on a petition for retroactive waiver and request for expedited ruling filed by ViSalus, Inc. ViSalus asks the Commission to grant it a retroactive waiver of the Commission’s prior express written consent requirement for automated telemarketing calls similar to the waivers previously granted to the Direct Marketing Association and Coalition of Mobile Engagement Providers in the 2015 FCC Order. The comment and reply comment deadlines are July 16 and July 30 respectively. Lastly, on July 6, the Commission released a Public Notice seeking comment on a petition for clarification and declaratory ruling filed by the Life Insurance Direct Marketing Association et al. This petition seeks a ruling that “life insurance agents and brokers (collectively, ‘servicing agents’) 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’ (‘EBR’) between life insurance servicing agents and their customers.” Comments are due on August 6, with reply comments due on August 21.

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Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Radhika Bhat