January 30, 2023

Volume XIII, Number 30


January 30, 2023

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TCPA Regulatory Update — A Busy FCC Continues to Implement the TRACED Act; Public Notice on Flu Vaccines During the Pandemic

Robocallers don’t sleep. Luckily, the FCC doesn’t either. The FCC has been working tirelessly to implement portions of the TRACED Act to better protect consumers against unwanted and illegal robocalls.

Report and Order Implementing Caller ID Authentication

The FCC had planned to vote on the Second Report and Order (discussed in more detail in last month’s TCPA Digest) at its September 30 meeting, but it adopted the decision the day before. The Second Report and Order took a number of steps implementing the TRACED Act, including, among others, requiring voice service providers to either upgrade their non-IP networks to IP and implement STIR/SHAKEN, or work to develop a non-IP caller ID authentication solution; and providing a framework to file for extensions to the implementation deadline for certain categories of providers, including small voice service providers. It also established a process by which providers that make early progress on caller ID authentication implementation can obtain an exemption from the June 30, 2021 deadline, as required by the TRACED Act. Providers interested in obtaining such an exemption will file for one in December of this year. All voice service providers – not just those applying for an early implementation exemption – will also have to file a certification in an FCC database showing how they are acting to stem the origination of illegal robocalls.

Notice of Proposed Rulemaking Implementing Section 8 of the TRACED Act

The FCC also released a Notice of Proposed Rulemaking seeking to implement section 8 of the TRACED Act, which directs the FCC to ensure that any exemptions the FCC grants to the robocall restrictions under the Telephone Consumer Protection Act (“TCPA”) include certain requirements. The FCC seeks comment on whether existing exceptions granted under the TCPA:

(1) cellular carrier calls to their own subscribers; 

(2) non-commercial calls to a residence; 

(3) commercial calls to a residence that do not constitute telemarketing; 

(4) tax-exempt nonprofit organization calls to a residence; 

(5) HIPAA-related calls to a residence; 

(6) package delivery–related calls to a wireless number; 

(7) financial institution calls to a wireless number; 

(8) health care-related calls to a wireless number; and 

(9) inmate calling service calls to a wireless number 

already include requirements with respect to (1) the classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of such calls that may be made to a particular called party.

Comments and replies are due on October 26 and November 30, respectively.

Public Notice on Flu Vaccines During the Pandemic

Although not part of its work implementing the TRACED Act, the FCC released a Public Notice seeking comment on a request for clarification filed by the National Association of Chain Drug Stores (NACDS) regarding previous FCC guidance that the COVID-19 pandemic constitutes an “emergency” under the TCPA and that consequently hospitals, health care providers, state and local health officials, and other government officials may communicate by robocall and robotext without prior express consent. NACDS asked the FCC to find that the same rules (i.e., no prior express consent is required) apply for “calls and texts related to COVID-19 vaccines, when available, as well as flu vaccines, during the pandemic.” NACDS argued that such communications fall within the emergency purposes exception because they are “‘solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.’” NACDS also filed a supplementary letter to its original filing to support its request.

The comment cycle closed on the Public Notice in early October, and only one comment was filed in the proceeding, supporting the request. The FCC has not yet ruled.

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 294

About this Author

Russell H. Fox, Communications Attorney, Mintz Levin, Regulatory Approvals

With over 35 years in the wireless telecommunications industry, Russell is among the most experienced wireless communications attorneys in the country. Unique among his peers, Russell assists clients on federal legislative, regulatory, and transactional matters. He analyzes legislation on behalf of clients, participates in proceedings before the FCC and other federal agencies, negotiates spectrum agreements, and represents wireless providers in spectrum auctions. He is also frequently consulted on matters involving US spectrum use and policy.

Whether they are in the middle of a...

Elana Safner Cybersecurity Attorney Mintz

Elana advises clients on public policy, regulatory issues, and disputes affecting the TechComm sector, as well as privacy and cybersecurity matters. She also has experience with Federal Communications Commission (FCC) procedures and rulemakings.

She has a Certified Information Privacy Professional (CIPP) (US Specialization) certification from the International Association of Privacy Professionals.

Prior to joining Mintz, Elana worked as an associate in the DC office of an international law firm, where she advocated on behalf of her clients spanning a wide variety of...