FCC Seeks Comment on Three Petitions that Could Reduce TCPA Exposure

The Federal Communications Commission’s Consumer and Governmental Affairs Bureau (CGA) has recently issued a series of public notices seeking comment on three separate petitions for declaratory ruling related to the Telephone Consumer Protection Act (TCPA).
 
The first comments that are due relate to a revised proposal put forth by the Cargo Airline Association (CAA) to exempt non-telemarketing package delivery notifications under the TCPA. The CAA’s original petition noted that the FCC has the authority to exempt autodialed and/or prerecorded messages to wireless telephone numbers when the called party is not charged for the call. The CAA now states that third-party providers offer a free-to-end-user text messaging service that can reach the subscribers of the four major US wireless carriers, which serve approximately 88 percent of wireless subscribers. In its revised proposal, the CAA asks the FCC to exempt free-to-end-user messages and also proposes seven conditions that must be met as part of an exemption for voice or text message package-delivery notifications. These conditions include provisions that would prohibit package-delivery notifications from containing any type of advertising content, the ability of consumers to opt out of future delivery notifications, and a limit of one notification per package. Comments are due December 17, 2013 and reply comments are due December 24, 2013.
 
The CGA is also seeking comment on the petition for expedited declaratory ruling filed by the Professional Association for Customer Engagement (PACE) that seeks clarification of the scope of equipment that falls under the definition of an Automatic Telephone Dialing System (ATDS). PACE is requesting a ruling that equipment that is incapable of dialing telephone numbers without human intervention does not constitute an ATDS. PACE further requests that the FCC clarify that a dialing system’s “capacity” is limited to what the system is capable of doing at the time a call is placed, without further modification. PACE’s petition, if granted, would significantly curtail a common plaintiffs’ argument in TCPA cases, i.e., if equipment could be modified in the future to store or produce telephone numbers to be called, it still has the “capacity” to be an ATDS. Comments on PACE’s petition are due December 19, 2013, with reply comments due January 4, 2014.
 
Finally, the CGA is also seeking comments on the petition for expedited declaratory ruling filed by Glide Talk, Ltd., a video messaging service that allows its users to send invitational text messages to friends and family to join the service. In addition to the clarifications sought by PACE regarding what equipment constitutes an ATDS, Glide Talk is requesting that the FCC issue a ruling that holds that an application developer does not “make” calls under the TCPA when the application’s users select the telephone numbers to be dialed and the user initiates the message. Comments are due January 3, 2014 and reply comments are due January 21, 2014.
 
If you are interested in commenting on any of the petitions or would like more information about their potential impact on your business, please contact Michael B. Hazzard, Ross A. Buntrock, or Adam D. Bowser.