TCPA Regulatory Update – FCC Seeks Comment on the Meaning of “Telemarketing” and “Dual Purpose” Under the TCPA

Although the Federal Communications Commission (“FCC”) has been affected by the government shutdown, it released several TCPA items in late December before it suspended most operations due to the lapse in funding.

FCC Seeks Comment on the Meaning of “Telemarketing” and “Dual Purpose” Under the TCPA

Most notably, the Consumer and Governmental Affairs Bureau released a Public Notice seeking comment on a Petition for Expedited Declaratory Ruling filed in mid-December by SGS North America, Inc. The petition seeks a ruling clarifying the meaning of “telemarketing” and “dual purpose” under the TCPA to confirm “that a call is subject to the [FCC’s] prior express written consent requirements only if it advertises the commercial availability or quality of any property, good, or service, or encourages the purchase or rental of, or investment in, property, goods, or services within the four corners of the communication itself.”  In the alternative, the petition seeks a “retroactive waiver from the prior express written consent requirements with respect to any telephone call made to schedule, confirm, or otherwise discuss a motor vehicle inspection.” Comments are due January 24, 2019, and reply comments are due February 8, 2019, assuming the FCC has resumed operations.

FCC Seeks Comment on Faxes Requesting Information on Medical Practices

The Consumer and Governmental Affairs Bureau also released a Public Notice seeking comment on a Petition for Declaratory Ruling filed in mid-December by Best Doctors, Inc. The petition asks the FCC to clarify that a fax requesting that the recipient verify the contact information and operational status of a medical practice for inclusion in a database, and that does not mention the commercial availability of any property, good, or service, is not an advertisement under the TCPA. Best Doctors, Inc. argues that clarification is needed because, although the FCC’s 2006 Junk Fax Order found that faxes that are pretexts or part of overall marketing campaigns to advertise a commercial good or service are advertisements under the TCPA, the FCC did not provide clear guidance regarding what factors should be considered when determining whether a fax message constitutes a pretext or part of an overall marketing campaign to advertise a good or service. In particular, the FCC did not address whether information not contained in the body of a fax, such as subsequent non-faxed solicitations, should be considered. Comments are due January 25, 2019, and reply comments are due February 8, 2019, assuming the FCC has resumed operations.

FCC Petition Asks for Guidance on the Use of Soundboard Technology

In addition to the above FCC actions, there were a couple of other interesting filings last month. NorthStar Alarm Services, LLC filed a Petition for Expedited Declaratory Ruling regarding the use of soundboard technology. Soundboard technology allows callers to communicate with consumers over the phone by playing prerecorded messages instead of using the caller’s live voice. Callers choose the messages to play in response to consumer’s statements but retain the ability to speak directly to consumers if needed. In its petition, NorthStar Alarm Services asks the FCC to clarify that the use of soundboard technology does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA. Alternatively, the petition seeks a declaration that the use of soundboard technology on a one-to-one basis, whereby the soundboard agent conducts only one call with one individual at a single time, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA. Notably, Federal Trade Commission staff regard calls using soundboard technology as robocalls for the purposes of the Telemarketing Sales Rule.

Application for Review of the FCC’s Order to Eliminate 2006 Solicited Fax Rule

Gorss Motels, Inc., Compressor Engineering Corporation, Swetlic Chiropractic & Rehabilitation Center, Inc., Shaun Fauley, and JT’s Frames, Inc. (together “Applicants”), filed an Application for Review by the full Commission of the November 14, 2018 Consumer and Governmental Affairs Bureau Order eliminating the 2006 Solicited Fax Rule (covered in our November TCPA Digest). The order denied as moot ten petitions and two petitions for reconsideration seeking retroactive waivers of the rule, finding that the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC vacated the rule. Applicants argued that the order erroneously assumed the D.C. Circuit’s decision in Bais Yaakov was a “non-discretionary mandate” to vacate the rule. Two oppositions to the application for review have already been filed, one by Fetch, Inc. d/b/a Petplan and another by Ohio National Mutual Holdings, Inc., supporting the Bureau’s decision.

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