April 8, 2016

FCC Seeks Comment on Whether the Telephone Consumer Protection Act’s Restrictions on Prerecorded Calls Apply to Home Business Telephones

Arnold & Porter Advisory

On March 31, 2016, the Federal Communications Commission (FCC) sought comment1 on a petition for declaratory ruling requesting the FCC to clarify whether a telephone line in a home used for business purposes should be considered a "residential" line under the Telephone Consumer Protection Act (TCPA)2 and the FCC's implementing rules.3 Under those rules, a telemarketer must obtain prior express consent from a called party before initiating a telemarketing call to a residential telephone line using an artificial or prerecorded voice.4

The petition for declaratory ruling was filed by Todd C. Bank, a plaintiffs' class-action attorney with a home-based practice focusing on challenges to the use of "robocalls" and other consumer-related matters.5 For this practice, Mr. Bank uses a telephone number that is listed publicly as both a business and residential number. In his petition, Mr. Bank asks that the FCC establish a "bright-line" rule that any telephone lines registered by a telephone company as "residential" be treated as a "residential line" under the regulation. He also argues that employing such a "bright-line" rule would eliminate the need for burdensome discovery in individual cases into whether a phone line is used primarily as a work or residential number. The FCC asks for comment on this request, as well as on whether it should adopt a different bright-line test or adopt some other test, such as a multi-factor analysis, to determine whether a telephone line is "residential" for purposes of the artificial/prerecorded voice call prohibition.

Mr. Bank is also the named plaintiff in a purported class action lawsuit pending before the United States Court of Appeals for the Second Circuit, in which he asserts that the defendants violated the TCPA by calling his phone number using an artificial or prerecorded voice without first obtaining his consent.6 The United States District Court for the Eastern District of New York previously granted summary judgment against Mr. Bank, finding that his phone line was not "residential" for purposes of the TCPA.7 The same day that Mr. Bank filed his petition with the FCC, he filed a motion for a stay of his action in the Second Circuit, pending the FCC's resolution of the petition.8 The Second Circuit then asked the FCC to file an amicus brief in the case,9 which the FCC did on April 6, 2016.10 In its brief, the FCC states that the TCPA and FCC regulations do not define the term "residential telephone line," and that the FCC has not resolved the question of whether a home business telephone line is a "residential" line. The FCC asks that the court grant Mr. Bank's motion for a stay and hold the case in abeyance pending the FCC's disposition of Mr. Bank's petition. The court has not yet acted on Mr. Bank's stay motion.

If the FCC interprets "residential line" as Mr. Bank requests, the Second Circuit might be inclined to reverse the decision below out of deference to the FCC, in accordance with the "Chevron" doctrine.11 By establishing a plaintiff-friendly interpretation of the TCPA as the law of the Second Circuit, such an outcome could spur similar class action suits against businesses making "robocalls," both in that jurisdiction and nationwide.

Companies or organizations having an interest in such a potential outcome may want to comment on Mr. Bank's petition before the FCC. Initial comments are due on May 2, 2016, with reply comments due on May 17, 2016.

  1. Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling Filed by Todd C. Bank Regarding the TCPA's Provision Concerning Prerecorded Calls, CG Dkt No. 02-278, Public Notice (CG rel. Mar. 31, 2016).

  2. 47 U.S.C. § 227.

  3. 47 C.F.R. § 64.1200.

  4. Id. § 64.1200(a)(3).

  5. Petition for Declaratory Ruling to Clarify the Scope of Rule 64.1200(a)(2), CG Dkt No. 02-278 (filed on Mar. 7, 2016); Todd C. Bank, Attorney at Law, P.C., (last visited Apr. 6, 2016).

  6. Bank v. Independence Energy Group LLC, No. 15-2391 (2nd Cir.).

  7. Bank v. Independence Energy Group LLC, No. 12–CV–1369, 2015 WL 4488070 (E.D.N.Y. July 23, 2015).

  8. Bank v. Independence Energy Group LLC, No. 15-2391, Motion for Stay of Appeal of Todd C. Bank (2nd Cir. Mar. 7, 2016).

  9. Id., Order (Mar. 8, 2016).

  10. Id., Amicus Curiae Brief of the Federal Communications Commission (Apr. 6, 2016).

  11. See generally Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).


Robert N. Weiner
Robert N. Weiner
Senior Counsel
Washington, DC
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