On March 31, 2016, the FCC released a public notice (“Public Notice”) seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Petition”), an attorney who maintains a home-based law practice. As Bank’s Petition notes, the TCPA includes a number of restrictions that apply to residential lines. For example, among them, the TCPA provides that “[i]t shall be unlawful for any person . . . to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . .” See 47 U.S.C. § 227(b)(1)(B). In his Petition, Bank argues that these calling restrictions apply to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber. The resolution of this question could have wide-reaching implications for telemarketers, who might as a result have another screen to apply to potential calls as to whether a number held out as a business line is actually a residential line as classified by the telephone service provider.
Bank contends that there is no public policy basis on which to distinguish residential lines that are used for personal purposes from those that are used for business purposes. Bank notes that people who work from home often choose to use a residential line for their business for a number of reasons, including that “the user wishes to avoid the increased charges associated with a business listing, . . . the user does not wish to forgo the protections afforded by the TCPA” and “the line is shared by the user with family members who use the line for personal purposes,” among other reasons. Petition at 2.
Bank first contends that the Commission already has “made clear that the use of a residential line by a home business does not change the status of the line as residential under the statute.” Id. In support of this claim, Bank cites the FCC’s 2002 TCPA NPRM, in which the Commission noted that autodialed calls “may also be disruptive to the increasing number of individuals who now work from home by tying up telephone lines.” Id. (citing 2002 TCPA NPRM at ¶ 15).
Bank next argues that the TCPA is a strict liability statute, so the risk of improperly calling a business that is using a residential line should fall on the telemarketer. Bank suggests that if the TCPA were intended to cover only knowing calls to residential lines, the drafters could have said so explicitly. The Petition cites a number of cases in which federal appellate courts had referred to the TCPA as a strict liability statute. See id. (citing Alea London Ltd. v.American Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011); Penzer v. Transportation Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008); Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc, 401 F.3d 876, 882 & n.3 (8th Cir. 2005)).
Finally, Bank contends that a bright-line rule that all lines registered as residential lines with the telephone company constitute residential lines for TCPA purposes makes the most sense. This reading, he asserts, reduces uncertainty for telemarketers trying to comply with the statute, and also increases judicial efficiency because there would be no need for discovery as to the typical use of a given line. According to Bank, without a bright-line rule, it would be necessary to resolve questions relating to how prominently a subscriber would have to advertise a line as a business number before it were considered one for TCPA purposes.
In its corresponding public notice, the FCC solicited comments on whether it should:
(1) establish such a bright-line test for identifying a “residential line” under the prohibition against unconsented-to calls using an artificial or pre-recorded voice, (2) adopt some other bright-line test to identify such lines, or (3) identify some other method, such as a multi-factor analysis, for determining whether a telephone line is a “residential line” for purposes of the artificial/prerecorded voice call prohibition.
Public Notice at 2. Further, the Commission sought comment on which factors it should consider if it were to adopt a multi-factor approach, as well as any other issues raised in the petition. Id. Given the large number of at home businesses and mixed uses of residential phones, this will be a notable question for the Commission to resolve.
Comments on the Petition are due on May 2, 2016, and replies are due by May 17, 2016.
Bank is also involved in TCPA litigation in which he claims the defendant placed unsolicited calls to his residential line, and as a result is liable for violating the TCPA. The district court held that Bank’s telephone line was not a residential line because Bank used it for his law practice, and that the calls therefore did not violate the TCPA. Bank appealed the case to the Second Circuit. Upon filing his Petition with the FCC, Bank moved to stay the appeal pending the FCC’s resolution of his Petition. On April 7th, 2016, the FCC weighed in on the appeal with an amicus brief that acknowledged that it “has never interpreted the term ‘residential telephone line’ for purposes of the TCPA’s restrictions on calls using an artificial or prerecorded voice.” FCC Brief at 8. Accordingly, the FCC urged the court to “grant Bank’s motion for a stay and, consistent with the doctrine of primary jurisdiction, hold this case in abeyance pending the Commission’s disposition of the petition.” Id. at 2.