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Law firm tracking TCPA petitions, claims they’re on the rise

By Jessica M. Karmasek | Feb 3, 2015

WASHINGTON (Legal Newsline) - According to one New York-based law firm, the number of active Telephone Consumer Protection Act petitions before the Federal Communications Commission is on the rise.


Kelley Drye & Warren LLP, which has offices in New York City, Washington D.C., Los Angeles, Chicago, Connecticut, New Jersey and Belgium, currently is tracking TCPA petitions before the FCC.


The FCC is tasked with regulating interstate and international communications by radio, television, wire, satellite and cable. An independent government agency overseen by Congress, the commission is the country’s primary authority for communications law, regulation and technological innovation.


The firm, pointing to companies’ use of mobile delivery platforms, cloud-based technologies and third-party vendors, contends litigation regarding alleged violations of the TCPA has increased recently.


The law restricts telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment.


In particular, the TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines. It also specifies several technical requirements for fax machines, autodialers and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.


Kelley Drye contends that companies are becoming more sophisticated in their use of telemarketing, autodialer and text message marketing campaigns.


And with that increased use comes more risks, including the potential for more class-action lawsuits, the firm notes.


According to the firm’s tracker, nearly 30 TCPA petitions are pending before the FCC.


They have grouped them together by their primary subject matter.


As of Jan. 13 -- the last time the firm’s tracker was updated -- there were 10 petitions relating to prior express written consent.


They include petitions filed by the American Association of Healthcare Administrative Management, American Bankers Association, Consumer Bankers Association, Rubio’s Restaurant, Santander Consumer USA Inc., Stage Stores Inc., United Healthcare Services Inc., Retail Industry Leaders Association, Coalition of Mobile Engagement Providers and The Direct Marketing Association.


Most of the petitions were filed last year.


Another seven petitions relating to the definition of “autodialer” also have been filed with the FCC and are pending.


They were filed by Milton H. Fried Jr. and Richard Evans, customers of a Houston-based salon who allege they received unsolicited text messages; TextMe Inc.; ACA International; Glide Talk Ltd.; Professional Association for Customer Engagement; YouMail Inc.; and Revolution Messaging LLC.


Three of those petitions were filed last year, three in 2013 and one in 2012.


Another three petitions relating to “junk” faxing rules are pending before the FCC, according to the law firm’s tracker.


They were filed by Francotyp-Postalia Inc. and Allscripts last year, and Westfax Inc. in 2012.


In addition, between January 2013 and October 2014, the FCC received more than two dozen similar petitions related to the “opt-out” language requirement for faxes sent with the recipient’s permission.


Also, the firm notes, prior to Oct. 30, 2014 there were 24 additional petitions pending that sought clarification of the “opt-out” notice requirement. However, through an order, the FCC denied most of the petitions.


An additional seven, unrelated petitions are pending before the FCC.


They were filed by Bijora Inc., RTI International, National Employee Network Association, VoAPPs Inc., Vincent Lucas, National Grid USA Inc. and Acurian Inc.


RTI’s petition, filed in September, asks the FCC to confirm that the TCPA does not restrict research survey calls made by or on behalf of the government.


The contractor argues that the federal government is exempt from the law because it does not fall within the definition of “person” and the law only prohibits calls by persons.


Comments were due in December, and replies were due last month.


In November, the Consumer and Governmental Affairs Bureau -- which develops and implements the FCC’s consumer policies -- issued a public notice seeking comment on a request from 39 state attorneys general asking for the FCC’s opinion about the legality of call-blocking technology.


The National Association of Attorneys General sent their letter to the FCC in September. They argue that some phone companies aren’t using call-blocking technology because they believe that federal law prevents them from doing so on their customer’s behalf.


“State law enforcement officials are doing everything possible to track down and prosecute those that engage in illegal telemarketing,” the Sept. 9 letter reads. “However, law enforcement cannot fight this battle alone. Call-blocking technology like NoMoRobo, Call Control and Telemarketing Guard appears to be the first major advancement towards a solution.”


Comments were due Jan. 23. Replies are due Feb. 9.


From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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