FCC Seeks Comments on Application of TCPA to Informational Calls Made by Cable Operators

February 9, 2016

On Friday, the Federal Communications Commission (“FCC” or “Commission”) released a Public Notice seeking comment on a new petition for declaratory ruling regarding the Telephone Consumer Protection Act (“TCPA”). This Petition, filed by Lifetime Entertainment Services, LLC (“Lifetime”), asks the Commission to clarify that unsolicited, pre-recorded calls to cable subscribers by a cable operator or cable programming network providing television channel lineup changes for channels to which the subscriber already subscribes do not constitute “commercial” or “advertising” calls under the TCPA.

Lifetime’s Petition was spurred by a pending lawsuit, in which the plaintiff claims Lifetime’s call to his roommate (who was the subscriber of the landline telephone number called and the cable subscriber) to inform the roommate Lifetime was moving to a new channel violated the TCPA when the plaintiff heard the message on his roommate’s answering machine. In addition to standing and class certification issues raised by Lifetime before the trial court, in its petition, Lifetime argues that its call to the plaintiff’s roommate is exempt from the TCPA under FCC rule 47 C.F.R. § 64.1200(a)(3)(ii)-(iii) as a non-commercial, informational call.

The TCPA generally prohibits calling a residential telephone line using an artificial or prerecorded voice without the prior express consent of the called party unless, among other things, the call is exempted by the Commission. Section 64.1200(a)(3)(ii) exempts calls to residential lines using an artificial or prerecorded voice from the TCPA for calls “not made for a commercial purpose,” and section 64.1200(a)(3)(iii) exempts calls to residential lines for a commercial purpose if the call “does not include or introduce an advertisement or constitute telemarketing.” Because Lifetime’s call provided information to a party already subscribed to the Lifetime channel, Lifetime claims its call was not made for a commercial purpose or, alternatively, did not introduce an advertisement or constitute telemarketing.

The Public Notice seeking comment on Lifetime’s petition set the comment deadline on March 7, 2016 and the reply comment deadline on March 21, 2016. If you have any questions about the application of the TCPA to your company or would like to file comments in response to Lifetime’s Petition, please contact Seth Williams at slw@commlawgroup.com or Nate Hardy at njh@commlawgroup.com.