FCC Doesn’t Have Authority To Require Opt-Out Notices on Solicited Faxes
Bais Yaakov of Spring Valley v. FCC
Vacated – in a 2-1 decision, the DC Circuit court ruled that the statutory language of the TCPA (as amended by the JFPA) did not explicitly require inclusion of an opt-out notice on solicited faxes. While including an opt-out notice may be good policy, it did not change the text of the statute. Although the FCC could interpret what constituted ‘solicited’ or ‘unsolicited’ faxes, or provide that consent could be revoked, the statutory text of the TCPA simply did not affirmatively authorize the FCC to require opt-out notices on solicited faxes.
The court dismissed as moot petitions challenging the fax opt-out waivers granted by the FCC under its 2014 Order that initially (temporarily) confirmed opt-out notices for solicited faxes (FCC 14-164).
[D.C. Circ.; 14-1234]
jbho: first step in overturning a long history of TCPA rulemaking?
The dissenting justice argued that in order to accomplish its mandate of preventing unsolicited faxes, the FCC did have the authority to require opt-out notice on all fax ads. For permission to be meaningful, consumers must be able to limit or withdraw it. Inclusion of opt-out notice on every fax simply gave practical effect to Congress’s ban on unsolicited faxes. Congress drew no line making solicited faxes “non-regulable.”
The dissenting justice was also less sympathetic to the targets of litigation, stating: “(plaintiffs) could have avoided such exposure by following the letter of the regulation and adding a few words to their standard faxes.” An errant footnote could not have created confusion and it was unclear how the waiver served the public interest. Thus in ‘indiscriminately waiving’ the opt-out notice requirement, the FCC ‘eviscerated its own rule.’
Interesting comments. Although, I think it’s unlikely the FCC will appeal.
New Petition Seeks To Make All TCPA Consents ‘Written’
UPDATE (8 Feb, 2017) The petition has been opened for comment.
● Comments are due 10 March 2017
● Reply comments are due 27 March 2017 https://www.fcc.gov/ecfs/filing/0208137810929/document/0208137810929e2d6
A recent petition seeks to repeal Commission orders allowing express consent to be implied through knowing provision of a number. Petitioners propose to implement changes that would require all express consent under the TCPA be in writing, to “streamline and harmonize the Commission’s regulatory regime.”
Petitioners argue the 1992 and 2008 (ACA) orders have created confusion and lead to inconsistent judicial decisions, with further confusion caused by consent exemption rulings in 2012 (Robocall Rules), 2014 (GroupMe) and 2015 (Omnibus Rule). Confusion that continues under the Commissions statements that “the scope of consent must be determined upon the facts of each situation.”
Petitioners further argue the commission’s interpretations of prior express consent have “read the word ‘express’ right out of the TCPA.” They argue that allowing express consent to be deemed, contradicts the Commissions own statements in its 2015 order (“Commission’s rules plainly require express consent, not implied or presumed consent.”) Additionally, petitioners argue, the Commission’s interpretations fail under Chevron, as (1) Congress’s intent is clear since the TCPA explicitly requires express consent (citing cases in the 5th, 6th, 8th, 9th, and 11th to support), and (2) even if ambiguous, amending the TCPA to include implied consent exceeds the Commission’s authority (“TCPA does not (permit) the Commission to create any exemptions … other than … exemptions for calls to a cell phone that are not charged to the called party …“)
Petitioners go on to state that FCC opinions have only served to further complicate matters. The FCC sought to eliminate the Established Business Relationship (EBR) – reversed for faxes in its 2003 order (¶189), and reversed EBRs for prerecorded telemarketing calls in its 2012 order (¶82). And its ‘clarification’ in amici briefs such as in Nigro have only served to further complicate the question of when express consent can be ‘deemed.’ While courts may not have agreed with FCC interpretations, they felt bound by the Hobbs Act to enforce the rules as written.
Petitioners would retain exclusions for tax-exempt nonprofit and health care message calls, but otherwise request the repeal of the 1992, 2008 (ACA), 2012 (Robocall Rules), 2014 (GroupMe), and 2015 (Omnibus) orders, to the extent they deem a person providing a telephone number to a caller, in any context, absent instructions to the contrary, as prior express consent. Proposed amendments to the regulations are provided in the Appendices.
jbho: Fits in with Trump’s recent executive order – repeal two regs for every new one?
But seriously folks, the Commission’s rules around consent have become increasingly complex over time, and a simplification is certainly needed. Not sure this petition is the right approach, but it does provide a nice summary of the complexity and parsing out the rules around prior express consent (¶6, p.15).
Note: the EBR for faxes was reinstated under the Junk Fax Prevention Act (2005). On prerecorded telemarketing calls, the Commission seemed to imply the shortcomings of EBR as consent in its Robocall Rules “…elimination of the EBR will require telemarketers to secure consent from consumers in some cases where they would not have obtained consent under the current rules” (¶26)
Ruling On Dual Purpose Messages
The FCC issued an Order denying a petition filed by Kohll’s Pharmacy & Homecare asking the Commission to rule that faxes that simply informed businesses of the health benefits of corporate flu vaccines did not constitute marketing. In the Alternative, Kohll’s asked the Commission to rule the faxes were exempt under HIPAA.
Kohll’s argued the purpose of the faxes were to promote wellness, despite the fact they contained price ranges and offered “free quote[s]” for flu vaccinations.
The Commission found the messages “Corporate Flu Shots … Only $16-$20 per vaccination” presented in bold, highlighted print meant the purpose of the faxes were not to convey neutral facts, but rather to encourage sales. Furthermore, the commission felt faxes did not include actual health information regarding the flu. Instead they focused on the commercial availability of flu vaccines, and thus constituted advertisements.
The commission also ruled that HIPAA exemptions only apply to calls, not faxes. Moreover, the exemptions, should they apply, would only apply to non-marketing fax messages. As the faxes were marketing, Kohll’s waiver request was similarly denied.
jbho: don’t try to overload an informational call with marketing. And a reminder that whether a message is marketing will turn on the perception of the recipient, and not the intention of the sender.
The FCC issued an advisory reminding callers that restrictions on making autodialed calls to cellphones applies to both voice calls and text messages. Non-marketing ‘robotexts’ require prior express consent, and marketing ‘robotexts’ require Prior Express Written Consent (PEWC). The FCC is empowered to issue fines of up to $18,936 per text.
jbho: one you might want to share with your business partners.
No Exemption For Free-To-End-User (FTEU) Debt Collection Calls
The FCC has issued an opinion denying the Mortgage Brokers Association (MBA) petition requesting an exemption for ‘mortgage servicing’ calls where the called party is not charged for call. The commission found MBA failed to demonstrate its members had the ability to make FTEU calls, and even if they could, the calls in question weren’t sufficiently time-sensitive to warrant an exemption. Moreover, the Commission felt mortgage servicers had effective alternatives to robocalls to make contact with consumers, and no state or federal law requiring consumer contact required the use of an autodialer.
jbho: looks like FTEU calls provide no safe harbor.
PEWC Waivers Granted
The FCC issued an order granting limited waivers of the Commission’s Prior Express Written Consent (PEWC) rules. Seven petitioners* raised concerns about confusion relating to the validity of prior express consent that had been obtained in writing, but a written consent that did not meet the statutorily required disclosures in the 2012 “Robocall Rules.” In its July 2015 omnibus order, the FCC recognized the confusion, and granted two previous petitioners 90 days to bring their written consents into compliance with the “Robocall Rules” (i.e., waivers for calls made between 16 October 2013 and 7 October 2015).
The FCC ruled that the petitioners here reasonably interpreted the Commission’s order to mean that their old written consents would remain valid after the new rules went into effect on 16 October 2013. Thus the FCC granted the seven petitioners waivers for calls made prior to the clarification in the July 2015 Omnibus Order – calls made between 16 October 2013 and 7 October 2015.
The waivers granted apply ONLY to calls for which some form of written consent had previously been obtained. And the waivers apply only to petitioners. Should other parties desire similar relief, the FCC will address them on a case-by-case basis.
* Mammoth Mountain Ski Area, Kale Realty, F-19 Holdings, National Association of Broadcasters (NAB) and its members, National Cable & Telecommunications Association (NCTA) and its members, Rita’s Water Ice, and Papa Murphy’s. Each filed their petitions after the July 2015 omnibus order was issued.
jbho: nice to see some leeway, but still need to have consent in writing.
FCC Grants Relief to Energy Utilities and Schools
The Commission released a Declaratory Ruling granting in part two separate petitions on emergency calls: one representing school callers filed by Blackboard, and one representing utility callers filed by the Edison Electric Institute (EEI) and American Gas Association (AGA).
The ruling confirms that calls made necessary by a situation affecting the health and safety of students and faculty are made for an emergency purpose. Specifically, it defines emergency calls made by school callers (and thus exempt from TCPA consent requirements) as including:
• weather closures
• dangerous persons
• health risks (e.g., toxic spills)
• unexcused absences
Otherwise prior express consent is required.
The Commission also clarified that school callers obtain prior express consent for ‘closely related purposes’ through knowing provision of a phone number to the school (educational institution). These related (non-emergency) calls include upcoming teacher conference or general school activities. However, non-school events or ballot issues do not fall within the scope of such consent.
The FCC declined to classify calls concerning utility service outages as ’emergencies*.’ However, the Commission clarified that utility callers obtain prior express consent through knowing provision of a phone number to the utility company for calls that:
• warn about planned or unplanned service outages
• provide updates about service outages or service restoration
• ask for confirmation of service restoration or information about lack of service
• provide notification of meter work, tree trimming, or other field work that directly affects the customer’s utility service
• notify consumers they may be eligible for subsidized or low-cost services due to certain qualifiers such as, e.g., age, low income or disability (limited to notification about eligibility or qualification, and NOT calls soliciting voluntary participation)
• provide notification of potential brown-outs due to heavy energy usage
• warn about the likelihood that failure to make payment will result in service curtailment
Otherwise prior express consent is required.
* Edison amended its petition to focus only on prior express consent through number provision in an ex-parte filing.
The Commission also reiterated that in both cases, consent can be revoked, and consent does not transfer when a number is reassigned.
jbho: interesting that for the first time (AFAIK), the FCC stated provision of a number over the course of a relationship can also constitute ‘prior express consent’:
“… we clarify that consumers who provide their wireless telephone number to a utility company when they initially sign up to receive utility service, subsequently supply the wireless telephone number, or later update their contact information, have given prior express consent to be contacted by their utility company …” ¶29
and goes on to state,
“prior to the termination of a customer’s utility service, a customer who provided a wireless telephone number when he or she initially signed up to receive utility service, subsequently supplied the wireless telephone number, or later updated his or her contact information, is deemed to have given prior express consent to be contacted (about service interruptions for failure to pay)” ¶32
but then backpedal by saying
“After a customer’s utility service has been terminated, however, routine debt collection calls by utilities to those customers will continue to be governed by existing rules and requirements, and we leave undisturbed the existing legal and regulatory framework for those calls.” ¶32
Petition Asking For Clarification on 2015 Ruling W.R.T. Health Care Calls Now Open For Comment
Joint Petition (Anthem, Inc., Blue Cross Blue Shield AssociationWellCare Health Plans, Inc., The American Association of Healthcare Administrative Management)
• Open : 19-Aug-16
• Comments Due : 19-Sep-16
• Reply Comments Due : 4-Oct-16
jbho: just an fyi.
Joint Petition Requesting Clarification Of 2015 Omnibus Rulemaking W.R.T. Non-Marketing Health Calls
The petition asks the FCC to rule:
(1) the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment or health care operations.
(2) the clarification of the prior express consent in paragraph 141 exemption granted in paragraph 147 of the 2015 Declaratory Order extends to all HIPAA “covered entities” and “business associates,” so that each use of the term “healthcare provider” in paragraph 147 of the 2015 Declaratory Order should be interpreted to read “HIPAA covered entities and business associates.”
The petition was filed jointly by Anthem, Inc., Blue Cross Blue Shield Association, WellCare Health Plans, Inc., and The American Association of Healthcare Administrative Management.
jbho: As I read it, it appears the petition asks the FCC to:
• Clarify that non-marketing health care related communications – for the purposes of treatment, payment, and health care operations – can be made without prior authorization (or, in TCPA terms, without prior express consent), as specified under the Privacy Rule [45 C.F.R. § 164.502]
• Clarify that the distinction between marketing and non-marketing calls made by Covered Entities and Business Associates is governed by HIPPA, and not the TCPA.
• Clarify that all health care rules/exemptions apply equally to Covered Entities and Business Associates under the 2012 & 2015 Orders