United States: Monthly TCPA Digest - June 2017

We are pleased to present our Monthly TCPA Digest, providing insights and news related to the Telephone Consumer Protection Act (TCPA). This month's issue covers the latest Commission releases as well as what's new on Capitol Hill, including the TCPA hearing by the House Judiciary Subcommittee on the Constitution and Civil Justice, FCC nominations, and the latest developments concerning the regulation of ringless voicemails.

PART I – TCPA: REGULATORY

Commission Releases

  • The Commission released a Draft Second Notice of Inquiry ("Draft Second NOI") seeking comment on a means for robocallers to verify whether a phone number has been reassigned from one consumer to another, so that they may avoid inadvertently placing calls to the wrong consumer and incurring TCPA liability. The Draft Second NOI is scheduled for consideration and adoption at the Commission's July 13, 2017 Open Meeting.

    • Reporting Number Reassignments. The Draft Second NOI seeks comment on requiring voice service providers that use North American Numbering Plan telephone numbers to report when numbers are reassigned. Specifically, the Commission seeks comment on, among other things, the type of information voice service providers should report; whether the reporting requirement should apply to all voice service providers—including interconnected VoIP and wireline providers—given that the TCPA provides greater consumer protection in the wireless context; which entity should be responsible for reporting when a service provider obtains numbers from carrier partners instead of directly from the numbering administration; whether mobile virtual network operators should be treated the same as facilities-based providers; and the costs and benefits of voice service providers reporting reassigned number information.
    • Reporting Mechanism. The Commission also seeks comment on four alternative mechanisms for voice service providers to report reassignments and for robocallers to access that information: (i) a Commission-established central database administered by an entity selected by the Commission; (ii) a process by which voice service providers report reassigned number information to robocallers directly or to reassigned number data aggregators; (iii) a process through which each voice service provider offers robocallers and reassigned number data aggregators the ability to query the voice service provider's own reassigned number information; and (iv) data reports made available by voice service providers to the public.
    • Additional General Matters. Last, the Commission seeks comment on a variety of general factors, including whether voice service providers should be compensated; the format in which data should be reported; how often the data should be reported; whether the reporting mechanism should also track which entities access the information and whether these entities must first meet any qualifications; reasonable access fees for the data; the risk of disclosure of customer proprietary network information without consumer consent; and the burdens on small businesses.
  • The Commission released a Draft Notice of Inquiry ("Draft NOI") on methods to authenticate the source of telephone calls to reduce caller ID spoofing and unwanted and fraudulent telephone calls. The Draft NOI is scheduled for consideration and adoption at the Commission's July 13, 2017 Open Meeting. The Draft NOI seeks comment on the following:

    • The Commission's role in promoting adoption and implementation of authentication frameworks and/or assuring call authentication, and should the Commission take action, the timeframes or milestones it should consider.
    • The "SHAKEN" (Secure Handling of Asserted information using toKENS) proposal—a system of call authentication proposed by industry groups—as well as any alternatives. The "SHAKEN" proposal is for a governance system that would set policies on how service providers, telephone numbers, and other entities and sets of information are managed in the call authentication system.
    • The criteria by which the various roles within this authentication system should be selected, including the governance authority, the policy administrator, and certification authorities, and recommendations on entities that can fill these roles.
    • The technical operation and implementation of the SHAKEN proposal.
    • The impact of call authentication proposals on reducing unwanted robocalls on IP-based and legacy telephone systems and other public policy considerations, including privacy and security, and the costs and benefits of implementing call authentication.
  • All About the Message, LLC ("AATM") has withdrawn its Petition for Declaratory Ruling, which asked the Commission to declare that the delivery of a voice message directly to a voicemail box does not constitute a call subject to the TCPA's prohibitions on autodialers and prerecorded and artificial voices.

PART II – TCPA: LEGISLATIVE

The Latest State-of-Play on the TCPA on Capitol Hill

House Judiciary Hearing on TCPA

In a sign of growing congressional interest in modernizing the Telephone Consumer Protection Act (TCPA), the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on June 13th about the law and its impact on businesses and consumers. The hearing focused on the rise in TCPA litigation but also explored possible legislative changes to the law. Adonis Hoffman, a former Chief of Staff and Senior Legal Advisor to FCC Commissioner Mignon Clyburn, called for a liability cap on TCPA rewards and a safe harbor for substantial compliance with the law, while other witnesses argued for a damages cap, affirmative defenses, and a statute of limitations for filing TCPA complaints. Representative Steve King (R-IA), the subcommittee chairman; Representative Bob Goodlatte (R-VA), the full committee chairman; and Representative Trent Franks (R-AZ) all expressed support for reining in litigation over the TCPA. Their Democratic colleagues, Subcommittee Ranking Member Steven Cohen (D-TN) and Representative Jerrold Nadler (D-NY), defended the TCPA's private right of action, while Representative Jamie Raskin (D-MD) advocated for clamping down on robocalls. As we have noted in previous digests, the TCPA bills that have the best chance of becoming law are those that strike the balance between strengthening the TCPA's protections for consumers and reducing its ambiguity and compliance burdens for businesses.

FCC Nominations

On June 14th, President Donald Trump re-nominated Democrat Jessica Rosenworcel for a second term on the Federal Communications Commission (FCC). Although the Senate failed to hold a confirmation vote for her last year, it is expected to send Rosenworcel back to the FCC. That would leave just one vacancy at the Commission. Reserved for a Republican, that seat has been the source of speculation for months, as several different people, at one point or another, have been considered the frontrunner for it. The current frontrunner for the position is rumored to be Brendan Carr, the general counsel of the FCC. If Carr is the nominee, the Senate may confirm him and Rosenworcel simultaneously. However, it also could confirm Rosenworcel with Chairman Pai (whose term expires at the end of the year) and wait to confirm Carr, or whoever the President's pick is, with Commissioner Clyburn (whose terms expires this month but who can serve on the Commission until the end of the year).

Regulatory Implications of FCC Nominations

A fully staffed FCC may be inclined to revisit some of the decisions that it issued in previous administrations regarding the TCPA. In a speech back in May, Commissioner O'Rielly said that if the FCC ends up revising these decisions it should: (1) permit legitimate businesses to engage in necessary communications with their customers; (2) change the definition of an "autodialer" to permit more efficient telemarketing by valid callers; and (3) target actual harms and bad actors, not legitimate companies.

One factor that is sure to affect how the FCC addresses the TCPA is the D.C. Circuit Court's ruling on ACA International's appeal of the FCC's 2015 TCPA Omnibus Order. In October of 2016, the Court heard oral arguments, and it is expected to issue its decision in the near future. Whatever the Court's decision, it could spur efforts in both Congress and the FCC to update the TCPA.

Legislative Implications of FCC Nominations

Telecom bills that had stalled in the Senate due to the standoff over Rosenworcel's nomination may now finally come up for a vote on the floor. One of those bills, which we've written about before, is the "Spoofing Prevention Act of 2017" (S.134). Sponsored by Senator Bill Nelson (D-FL), the Ranking Member of the Senate Commerce Committee, this bill would close legal loopholes that allow bad actors to "spoof" (i.e., to present false caller ID information) in order to misrepresent themselves in phone calls and texts. The Senate Commerce Committee unanimously approved this bill at its January markup. In the House, Representative Grace Meng (D-NY) introduced a companion measure, titled the Anti-Spoofing Act of 2017 (H.R. 423), which the lower chamber passed in January by a vote of 398-5.

Ringless Voicemails

Outside of legislating on the TCPA, Congress also may have a hand in shaping regulations based on the law. On June 14th, Senator Ed Markey (D-MA) led a letter signed by ten other senators to FCC Chairman Ajit Pai urging him not to grant a petition from All About the Message, LLC that would exempt ringless voicemails from the TCPA's autodialer protections. The following week, Representative Dan Lipinski (D-IL) sent to Chairman Pai a companion letter, which thirteen of his House colleagues joined. However, the letter came a day after All About the Message withdrew its petition for a declaratory ruling. Asked about the company's decision at Thursday's FCC Open Meeting, Chairman Pai said that he had only "recently learned" of it but pledged that he and FCC staff would take "appropriate course."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Joshua Briones
Russell H. Fox
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.