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Posts Tagged ‘radio’

Petitioners Submit Statements of Issues in Appeal of FCC’s TCPA Ruling

Posted on: August 20th, 2015

By: Matt Foree

As reported previously, the Federal Communications Commission (FCC) issued its Declaratory Ruling and Order (Order) regarding the Telephone Consumer Protection Act (TCPA) on July 10, 2015.  That ruling was immediately appealed by several business organizations including ACA International and Sirius XM Radio, Inc. (XM Radio), which filed appeals in the U.S. Court of Appeals for the District of Columbia Circuit. The Professional Association for Customer Engagement, Inc. (PACE) filed a similar petition in the 7th Circuit Court of Appeals.  On July 24, 2015, the three petitions for review were consolidated into the Court of Appeals for the District of Columbia Circuit.

ACA International, XM Radio and PACE (Petitioners) have each filed their Statement of Issues per the court’s rules. In their Statements of Issues, the Petitioners set forth the issues that form the basis of their appeals. For example, the Petitioners criticize the FCC’s definition of “automatic telephone dialing system” (ATDS) in the Order. ACA International asserts that Congress enacted a precise definition of ATDS that excludes telephones that do not fall within the definition of ATDS, but the FCC disregards the definition to expand the type of equipment that the TCPA covers. Therefore, it argues, the Order extends the FCC’s jurisdiction to regulate telephones that are not within the definition of ATDS. Furthermore, ACA International criticizes the Order’s treatment of “capacity” in determining whether a device is an ATDS such that it does not comport with a caller’s constitutional right of due process.

The Petitioners also criticize the Order’s definition of “called party” in the context of the “prior express consent” defense. As noted by XM Radio and PACE, the FCC concluded that the term “called party” means “‘the subscriber or customary user’ of the number in question, not the intended recipient of the call, even though callers often have no way of knowing that a number has been reassigned from one person to another.” As ACA International asserts, this definition “misinterprets the statutory text and will result in liability for innocent and unknowing conduct.” XM Radio and PACE then note that the FCC, “[r]ecognizing the unfairness of that outcome,” interpreted the TCPA’s prior express consent provision to give callers “one liability-free call to a number that has been reassigned.” They also note that, even if the one call does not provide the caller with information about the status of the number, “callers remain liable for any subsequent call made without the prior consent of the subscriber or customary user.” ACA International asserts that the FCC’s conclusion that “we deem the caller to have constructive knowledge” of a reassigned number after one call is arbitrary, capricious, and an abuse of discretion.

Significantly, ACA International notes that the Order disregards Congress’s findings in the TCPA. It states that, when Congress enacted the statute, “it found that ‘[i]ndividuals’ privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.” ACA International contends that the Order rejects that balance and disregards “commercial freedoms of speech and trade” to create a “regulatory web so tangled that it snares legitimate, compliant, law-abiding actors along with the abusive and intrusive callers at whose conduct the law is aimed.”

The Petitioners’ Statements of the Issues underscore the problems that were compounded by the Order, the lack of common sense that remains in interpreting the TCPA, and the potential for increased litigation unless the Order is modified.



The Marketing Risks of Insurance Related Litigation

Posted on: October 4th, 2012

By: Seth Kirby

Nationally syndicated radio host Clark Howard recently targeted auto insurer Progressive in his “Clarkrageous Moment,” a segment in which he expresses his outrage over various topics.  In this instance, his outrage stemmed from an auto accident in Maryland that caused the death of Kaitlynn Fisher.  Ms. Fisher was insured by Progressive, and her family submitted a claim for uninsured motorist benefits under her Progressive Policy, which was not immediately paid.  Mr. Howard was outraged that Progressive had the audacity to participate in a lawsuit against the at fault driver, arguing that Ms. Fisher, its own insured, was responsible for the accident.  Mr. Howard came across this case because of the social media efforts of Ms. Fisher’s brother.  He posted about the situation on his personal blog, and the story went viral, resulting in an outpouring of online reports and numerous mentions in various main stream media.

With condolences to the Fisher family for their loss, and putting aside the merits of the case, from a procedural standpoint, Progressive was simply exercising their rights as a UM carrier to determine who was responsible for the accident.  Such a system is used in many states and often requires a judgment against the tortfeasor before a UM carrier is required to pay damages to its insured.  The fact that such arguments are allowed, does not automatically shield a carrier from public backlash should their ligation decisions be challenged.  Indeed, in this instance, the fact that the carrier had a legal right to argue that the accident was the fault of their insured was either overlooked by many media outlets, or buried beneath headlines like “Progressive insurance on defense after dodging paying family of a client killed in a crash.” Matthew Barakat, Chicago Sun-Times, August 17, 2012.

While it is often said that any press is good press, I doubt that applies in this situation.  Not only did Progressive lose the underlying case, it has also suffered a blow in the eyes of the public.  But what could have been done to stop the backlash other than avoiding the suit altogether?  Insurance litigation has always required carriers to take public positions (in the form of pleadings) that are often against the financial interests of their insureds, but until recently, such lawsuits were not the subject of internet blogs and Facebook posts.  In our current social media environment, it seems that the marketing impact of insurance litigation must be considered along with the merits of each case.  When litigation is warranted, care must be taken to educate any interested media outlets regarding the purpose of the litigation.  Of course, doing so may be easier said than done.