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On December 30, 2020, the Federal Communications Commission (“FCC”) released a Report and Order (“Order”) that imposed certain new restrictions on nonmarketing prerecorded calls to residential lines.  The action was in response to Congress’s mandate in the TRACED Act that the FCC reevaluate certain exemptions the agency previously granted regarding the consent requirements for prerecorded calls under the Telephone Consumer Protection Act (“TCPA”).
Continue Reading FCC Imposes New Requirements on Nonmarketing Prerecorded Calls to Residential Lines

FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA).  To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.
Continue Reading FCC Announces Section 230 Rulemaking

Earlier this week, the Federal Communications Commission’s (FCC’s) Consumer and Government Affairs Bureau released a Declaratory Ruling clarifying the agency’s interpretation of the “Automatic Telephone Dialing System” (an “autodialer” or “ATDS”) definition in the Telephone Consumer Protection (TCPA).  The Ruling clarified that, in the context of a call or text message platform, the definition does not turn on whether the platform is used by others to transmit a large volume of calls or text messages; instead, the relevant inquiry is whether, in this context, the platform is capable of transmitting calls or text messages without a user manually dialing each such call or text message.

The Declaratory Ruling was issued in response to a Petition filed by the P2P Alliance  seeking confirmation that its text messaging platform is not an autodialer and therefore not subject to the TCPA’s ATDS-related consent requirements.  These requirements generally prohibit using an ATDS to call or text a mobile number without the recipient’s consent.  The Petition stated that the text messaging platform at issue required users of the platform “to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time.”  The Petition also stated that recipients generally would provide their consent to receive such messages by providing their mobile numbers to the platform’s users.
Continue Reading FCC Issues Two TCPA Declaratory Rulings, One Clarifying Autodialer Definition

Yesterday, the Federal Communications Commission (FCC) took additional steps to implement the various mandates in the TRACED Act (discussed here and here), which was enacted late last year to help combat illegal robocalls.  Specifically, the FCC yesterday released a notice of proposed rulemaking (NPRM) that seeks comment on how best to eliminate “one-ring scams.”  Included in the NPRM is a proposed rule that would permit voice service providers to block callers suspected of transmitting such scam calls.
Continue Reading FCC Continues TRACED Act Implementation, Proposes to Expand Scope of Permissible Call Blocking

Yesterday, the Federal Communications Commission (“FCC”) on its own motion released a Declaratory Ruling to confirm that the COVID-19 pandemic constitutes an “emergency” under the Telephone Consumer Protection Act (“TCPA”); as a consequence, hospitals, health care providers, state and local health officials, and other government officials may lawfully communicate through automated or prerecorded calls (which include text messages) information about the coronavirus and mitigation measures to mobile telephone numbers and certain other numbers (such as those of first responders) without “prior express consent.”

By way of background, absent “prior express consent,” the TCPA prohibits the transmission of an automated or prerecorded call to any mobile telephone number.  However, this prohibition is subject to an “emergency purposes” exception.  The TCPA does not define what constitute “emergency purposes,” but the FCC’s rules construe the term to mean “calls made necessary in any situation affecting the health and safety of consumers.”…
Continue Reading FCC Clarifies that COVID-19 “Emergency Purposes” Calls/Text are Not Subject to “Prior Express Consent” Requirement

Yesterday, the Federal Communications Commission (“FCC”) released a Public Notice seeking comment on a range of issues relevant to its interpretation of the Telephone Consumer Protection Act (“TCPA”), including how the FCC should interpret what constitutes an “automatic telephone dialing system” in the wake of a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit to vacate the agency’s prior interpretation of that term.

This same issue was the focus of a petition for declaratory ruling filed earlier this month by the U.S. Chamber Institute for Legal Reform and a number of other industry organizations.

The Public Notice seeks comment on a range of other TCPA issues, some of which also were addressed by the D.C. Circuit’s recent decision.  These include how calls to reassigned mobile telephone numbers should be treated under the TCPA and the ways in which a party may revoke his or her prior express consent to receive automated or prerecorded calls under the statute. …
Continue Reading FCC Seeking Comment on Key TCPA Reform Issues in Wake of DC Circuit Ruling

On February 28, 2018, the Federal Trade Commission (“FTC”) issued a report discussing security updates for mobile devices.  The report stems from information the FTC collected from eight mobile device manufacturers — Apple, Blackberry, Google, HTC, LG, Microsoft, Motorola, and Samsung — and from information the Federal Communications Commission (“FCC”) collected from mobile carriers in May 2016. …
Continue Reading FTC Issues Report on Mobile Device Security Updates

In a ruling with implications for both net neutrality and privacy, the Ninth Circuit ruled en banc today that the common carrier exemption in Section 5 of the FTC Act is activity-based, reversing a 2016 panel ruling that the exemption was status-based.  Today’s decision bolsters the FTC’s authority to bring consumer protection (including privacy) and competition actions against providers of Internet access service, which the FCC has ruled is not a common carrier service in connection with that agency’s repeal of net neutrality rules.

This appeal arises from the FTC’s lawsuit against AT&T alleging that AT&T’s practice of throttling the speed of customers with unlimited data plans once they reached a certain data usage threshold violated Section 5 of the FTC Act.  AT&T had challenged the FTC’s authority to bring the case, arguing that the company was immune from FTC oversight because it also offers common carrier (e.g., voice telephone) service.  Although the district court sided with the FTC on this question, a 2016 Ninth Circuit panel went the other way and, in doing so, created what the FTC and FCC agreed was a potential ‘gap’ in authority in which neither agency would have the right to police many actions by telecommunications companies. …
Continue Reading Ninth Circuit Decision Provides Critical Win to FTC in its Authority over Internet Service Providers

FCC Chairman Ajit Pai announced today that at its December 14 open meeting, the FCC will vote on an overhaul of the net neutrality framework adopted by the prior Administration in 2015.  The full text of the draft order will be released tomorrow, but Chairman Pai has made certain key details known today.  The order envisions an expanded role in oversight of Internet Service Providers (“ISPs”) by the Federal Trade Commission—a move which Acting FTC Chairman Maureen Ohlhausen welcomed.

First, as anticipated, Internet Service Providers (“ISPs”) will again be classified as providers of “information services” under Title I of the Communications Act, rather than “telecommunications services” under Title II.  In many ways, in recent years the net neutrality debate in the U.S. has been as much—or some would say, more—about this statutory classification question than it has been about specific net neutrality rules.  …
Continue Reading FCC Poised to Release Draft Order on Net Neutrality Overhaul

Last week, the FCC issued a forfeiture order against Dialing Services, LLC (“Dialing Services”) $2,880,000, finding that Dialing Services made automated calls to wireless phones without prior express consent, in violation of the Telephone Consumer Protection Act (“TCPA”).  Dialing Services is a platform that offers automated calling services to its customers, and this Order is the culmination of the FCC’s investigation of the company dating back to 2012.

In 2012, FCC staff determined that Dialing Services had made more than 4.7 million calls to wireless phones in violation of the TCPA during a three-month period.  The Enforcement Bureau (“Bureau”) issued a citation in March 2013, directing the company to certify that it had stopped making calls in violation of the TCPA.  During a follow-up investigation, the staff determined that Dialing Services had continued placing calls after the citation, including 184 additional unauthorized calls to wireless phones in May 2013.  As a result, the FCC issued a Notice of Apparent Liability (“NAL”) in May 2014, proposing a $2.94 million fine.  (The ultimate forfeiture order reduced this amount to $2.88 million based on evidence that some of the calls were made with consent.)

In response to the NAL, Dialing Services asserted (among other things) that unlike its customers, it was merely a platform and therefore did not “make” or “initiate” the calls at issue under the TCPA.  The FCC applied its test for determining whether a party “initiated” or “made” a call for TCPA purposes from the 2013 Dish Network declaratory ruling:  whether the party “takes the steps necessary to physically place a telephone call” or, alternatively, is “so involved in the placing of a specific telephone call as to be directly liable for making it.” …
Continue Reading FCC Fines Calling Platform $2.88 Million for TCPA Violations