Telecom Law Monitor : Washington D.C. Telecom Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

Jameson Dempsey co-authored this post.

In a ruling that FCC Commissioner Ajit Pai described as "a win for consumers and for innovative companies alike," the FCC granted a petition for declaratory ruling filed by SoundBite Communications, Inc., finding that one-time text messages confirming a consumer's request not to receive any future text messages do not violate the Telephone Consumer Protection Act of 1991 ("TCPA").  The Order represents a significant victory for mobile marketing firms like SoundBite and companies conducting mobile marketing, which have been inundated  with actual and threatened class action lawsuits over such confirmatory messages.

Although the ruling is an important victory, the FCC's rationale for permitting the messages is relatively narrow and not all confirmatory messages will be permitted.  Moreover, the FCC's ruling in effect imposes a requirement that confirmatory texts be sent within five minutes of the consumer's opt-out request.  Companies engaging in mobile marketing should review their practices carefully before sending additional confirmatory text messages in reliance on the FCC's ruling.

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This post was co-written by Randy Sifers.

In February, the FCC adopted several changes to its telemarketing rules, including a new requirement that telemarketers must receive express written consent to send certain autodialed or prerecorded message calls. On June 11, the FCC's order was published in the Federal Register. The Federal Register summary is available here.

As a result, the new rules will take effect beginning July 11, 2012. As explained after the jump, some of the rules will not take effect until OMB approves the new recordkeeping requirements. Nevertheless, publication in the Federal Register starts the clock for appeals and petitions for reconsideration of the rules.

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Usually without much fanfare, the FCC goes about the business of adjudicating slamming complaints under its TPV rules.  This latest case underscores that the Consumer & Governmental Affairs Bureau continues to strictly enforce the content requirements for confirmation of carrier change orders.  This time, it emphasized that the rules require confirmation of a carrier change, not just a change to the customer's service.  Carriers should periodically review their verification scripts to ensure that they satisfy this increasingly literal standard applied by the FCC.

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 As required by a recent act of Congress, the FCC opened a proceeding to create a Do-Not-Call registry to allow public safety answering points ("PSAPs") to register telephone numbers associated with the provision of their emergency telephone services.  Once the registry is established, telemarketers would be prohibited from using automatic telephone dialing systems to place calls to these numbers and from delivering prerecorded calls to these numbers.  

Under the new legislation, PSAPs would be permitted to register all 911 trunks and "other lines used for the provision of emergency services" in the do-not-call database.  The Commission proposes to allow both primary PSAPs and secondary (overflow) PSAPs to register numbers in the database.  The Commission also asks for comment on the most efficient way to establish the registry, including ways the registry could be coordinated with the National Do-Not-Call registry for residential telephone numbers.  

The NPRM also seeks comment on various enforcement provisions related to the new registry.  The legislation requires the Commission to establish monetary penalties of "not less than $100,000 per incident nor more than $1 million per incident" for disclosure of the numbers in the registry and between $10,000 and $100,000 per call made in violation of the do-not-call restriction.  Further, similar to the finding it made with respect to the 21st Century Communications and Video Accessibility Act ("CVAA"), the Commission asks whether it may proceed against non-licensees directly, without first issuing citations that are otherwise required under the Communications Act.

Comments will be due 30 days from publication of the NPRM in the Federal Register, with reply comments due 45 days from FR publication.

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As we've noted previously, the U.S. Department of Justice has urged the FCC to take an expansive interpretation of the Truth in Caller ID Act of 2009.  In comments filed last week, the Department continued its effort to have the FCC apply the rules to VoIP providers, including those not subject to any FCC rules today.

In its comments in response to the FCC Notice of Proposed Rulemaking, the Department urged the FCC to adopt rules regulating Caller ID spoofing providers directly.  It contends that this authority is rooted in the Truth in Caller ID Act of 2009 itself and in the Commission's "ancillary" authority over non-common carriers (the same authority at issue in the Comcast net neutrality case).  The Department does not explicitly mention non-interconnected VoIP providers or one-way VoIP providers in its comments, but its arguments would extend to any service provider offering spoofing services. 

The Department's comments are available here.

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Last week brought new actions in three of the FCC's most common enforcement areas:  Failure to pay USF contributions, "robocall" telemarketing violations and "junk fax" solicitations.  One action also is an example of anti-spoofing enforcement by the Commission.  The Commission's actions are briefly described below.

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In response to the passage of anti-spoofing legislation late last year, the FCC recently adopted a Notice of Proposed Rulemaking to tighten rules relating to the "spoofing" of caller ID information.  The Commission is seeking comments in late April and early May, which would make it tough for the Commission to meet the legislation's six-month deadline for the adoption of implementing rules.

The NPRM contains a surprising proposal to bypass the ordinary enforcement processes the Commission uses.  See below for that and other highlights of the proposal.

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In late December, Congress passed new Anti-Spoofing legislation.  As we told you at the time, the Act requires the FCC to enact implementing regulations within 6 months.  In anticipation of that rulemaking, the U.S. Department of Justice's Criminal Division submitted a letter to the FCC with its recommendations for the regulations.

The DOJ letter is described in more detail below.  Most notably, DOJ recommends verification obligations be imposed on providers of spoofing services and proposes an expansive definition of "IP-enabled Voice Service" that would impose obligations on services heretofore not subject to FCC regulations.  If the FCC agrees, new classes of entities would be subject to compliance obligations relating to Caller ID spoofing.

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Last month, the FTC issued an “Advance Notice of Proposed Rulemaking” seeking comments on whether and how to strengthen the Caller ID provisions of its Telemarketing Sales Rule. The Rule presently requires telemarketers to provide Caller ID information to allow consumers to screen out unwanted calls. The FTC seeks comments on how to make Caller ID more useful to consumers and combat technologies that hide telemarketers’ identities. Currently, the Caller ID regulations give telemarketers flexibility in determining what telephone numbers to transmit, and in determining whether the name of the telemarketer, or the name of the seller or charity, is displayed on Caller ID services.

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