D.C. Circuit Selected for Review of the FCC’s July 2015 Omnibus TCPA Declaratory Ruling


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August 2015 TCPA Compliance Monitoring Report

As we noted last month, the Federal Communications Commission’s (“FCC” or “Commission”) Omnibus TCPA Declaratory Ruling could cause some major headaches for companies that rely on robocalling technology, and in the wake of the FCC’s decision, several companies filed appeals of the decision. Among other things, the appellants argue the FCC improperly defined the “capacity” of equipment to store or produce numbers by not limiting the definition to the equipment’s present capability, improperly defined a “called party” as the current subscriber of a number rather than the intended recipient of the call, and improperly defined “prior express consent,” including with respect to reassigned numbers.

On July 23, 2015, the U.S. Judicial Panel on Multidistrict Litigation (the “Panel”) selected the D.C. Circuit for consolidation and review of three appeals challenging the Commission’s Omnibus TCPA Declaratory Ruling. The consolidated petitions are as follows:

  • Professional Association for Customer Engagement, Inc. v. Federal Communications Commission, No. 15-2489 (7th Circuit)
  • ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Circuit)
  • Sirius XM Radio Inc. v. Federal Communications Commission, No. 15-1218 (D.C. Circuit)

Pursuant to 28 U.S.C. § 2112(a)(3), the Panel ordered that these three petitions be consolidated in the D.C. Circuit and designated that circuit as the location for the record to be filed pursuant to Rules 16 and 17 of the Federal Rules of Civil Procedure. 

We will monitor the progress of the D.C. Circuit’s review of the FCC’s Omnibus TCPA Declaratory Ruling, and we will continue to update the progress of the case.

Other News and Notes:

On July 31, 2015, the FCC’s Consumer and Governmental Affairs Bureau (“CGB”) released a Public Noticerequesting comment on five petitions seeking waiver of the Commission’s rules concerning opt-out notice requirements for fax advertisements sent to consumers who have provided prior express invitation or permission. Comments are due by August 14, 2015, and Reply Comments are due August 21, 2015.

Specifically, the CGB is seeking comment on the following petitions:

  • Petition of Megadent, Inc.d/b/a Megadent Labs, Inc. d/b/a Megadent Laboratories and Kim  Martinez for Waiver of Section 64.1200(a)(v)(iv) of the Commission’s Rules, CG Docket Nos. 02-278, 05-338 (filed June 24, 2015).
  • Petition of Ivoclar Vivadent, Inc. for Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv), CG Docket Nos. 02-278, 05-338 (filed June 24, 2015).
  • Petition of Renaissance Systems and Services, LLC for Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv), CG Docket Nos. 02-278, 05-338 (filed June 25, 2015).
  • Petition of Zimmer Dental, Inc. d/b/a Zimmer Dental and Amy Beth Gerzog for Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv), CG Docket Nos. 02-278, 05-338 (filed July 16, 2015)
  • Petition of Costco Wholesale Corporation for Retroactive Waiver or in the Alternative for Declaratory Ruling, CG Docket Nos. 02-278, 05-338 (filed July 22, 2015). 

A monthly CGB Public Notice for petitions filed in response to the Commission’s Anda Order is becoming a tradition as petitions continue to file “me too” petitions. In the Anda Order, the Commission granted several retroactive waivers of Section 64.1200(a)(4)(iv) because of uncertainty about whether the fax advertisement opt-out notice requirement applied to “solicited faxes.” Although the waivers granted in the Anda Order applied only to the petitioners specifically listed in that order, the Commission noted that other similarly situated parties may also seek waivers of the opt-out notice requirement. As such, the CGB seeks comment on the five requests for waiver filed since the last CGB Public Notice in June.

If you would like to file comments pursuant to the CGB’s Public Notice, or have questions regarding your company’s compliance with the TCPA, please contact Linda McReynolds, lgm@commlawgroup.com – 703-714-1318; Jane Wagner, jlw@commlawgroup.com – 703-714-1321; or Robert Jackson, rhj@commlawgroup.com – 703-714-1316.

ATTORNEY ADVERTISING DISCLAIMER: This information may be considered advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers

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