May 19, 2019

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TCPA Regulatory Update: FCC on NPRMs and Petitions; the 2020 Census

FCC Continues Review of Comments on NPRMs and Petitions, Meets with Stakeholders

The FCC continues to review comments and meet with parties in a variety of TCPA-related proceedings, but the agency did not vote on any TCPA items at the Commission’s April open meeting.

Comments were due on April 3 on the FCC’s February 2019 Notice of Proposed Rulemaking (NPRM), which sought comment on proposals to modify the FCC’s current Truth in Caller ID rules to track the wording of the RAY BAUM’S Act’s statutory amendments. The FCC’s proposals would expand the reach of the Truth in Caller ID Act to robocalls originating outside the United States and expand the scope of covered entities. The NPRM was discussed in detail in our February 2019 blog. The FCC received several comments on the NPRM. Among other commenters, consumer groups urged the FCC to take the opportunity to require phone companies to implement caller ID authentication technology; set guidelines for, and oversee, that implementation to ensure that it is effective; and ensure consumer representation on the SHAKEN/STIR governance board. CTIA supported the FCC’s plan and encouraged it to expand the scope of the anti-spoofing rules to include Short Message Service (SMS) and Multimedia Message Service (MMS) text messages to maintain consistency with the Wireless Messaging Declaratory Ruling, and “take even more steps to deter bad actors.” Twilio explained the legitimate benefits of caller ID modification in certain instances and asked the FCC to hew closely to the Caller ID updates required by the RAY BAUM’S Act, rather than expanding the scope of the regulations beyond congressional intent. Reply comments are due on May 3.

Comments were due on April 8 on the Petition for Expedited Clarification or Declaratory Ruling filed by the law firm Akin Gump Strauss & Feld LLP on February 26. The petition relating to liability for junk faxes was discussed in detail in last month’s blog. The FCC received a handful of comments, both in support of and opposing the petition, and reply comments are due on April 23. Akin Gump also met with Commission staff to discuss its petition.

The FCC continues to review comments submitted on the Petition for Declaratory Ruling filed by Best Doctors, Inc. and the Petition for Expedited Declaratory Ruling filed by NorthStar Alarm Services, LLC regarding the use of soundboard technology. We wrote about both petitions in our January blog. Both petitioners met with Commission staff this month in support of their requests, but the FCC has not yet released a decision in either case.

Secretary Ross Concerned with Possible Impacts of TCPA on the 2020 Census

Finally, on April 4, Secretary of Commerce Wilbur Ross sent a letter to Chairman Pai and the other FCC Commissioners opposing the FCC’s reconsideration of the Broadnet Declaratory Ruling. Secretary Ross believes the Commission correctly decided the matter when it released its 2016 Declaratory Ruling finding that federal agencies and contractors working on behalf of federal agencies are not “persons” under the TCPA, thereby making them immune from TCPA liability when they comply with the government’s instructions.

The issue is significant to the Department of Commerce as it prepares for the 2020 Census, where federal contractors will call millions of Americans, often on their mobile phones, to collect the required data. Although Secretary Ross explains that federal contractors will not use autodialers within the meaning of the TCPA, he is concerned that a reconsideration of the Broadnet Ruling could “inject[] substantial uncertainty” into the Census Bureau’s ability to use contractors. Possible reconsideration of the Broadnet Declaratory Ruling was one of the issues raised by the FCC in its May 2018 Public Notice seeking comment on numerous TCPA-related issues in light of the U.S. Court of Appeals for the District of Columbia in ACA International v. FCC.

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About this Author

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

With over 30 years in the wireless telecommunications industry, Russell is among the most experienced wireless communications attorneys in the country and is a frequent speaker at industry conferences.

Before joining the firm, Russell was a partner and head of the telecommunications department in the Washington office of a major Chicago-based law firm, where he represented users and providers of telecommunications services and equipment. Previously, he was the executive director and president of the American SMR Network Association, Inc., where he established offices of a national...

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Elana Safner, Mintz Levin Law Firm, Washington DC, Litigation Law Attorney
Associate

Elana advises clients on public policy, regulatory issues, and disputes affecting the communications 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 Levin, 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 industries and issues, including telecommunications, privacy, cybersecurity, and autonomous vehicles. Elana has also presented and published on the topic of legal issues facing artificial intelligence.

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