Pimental v. Google, Inc. et al

Filing 30

Request for Judicial Notice re 29 Motion to Dismiss filed by Google, Inc., Slide, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Related document(s) 29 ) (Wilson, Bobbie) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF).

EXHIBIT 7

Before the
Federal Communications Commission
Washington, D.C. 20554

Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991

)
)
CG Docket No. 02-278
)
)

COMMENTS OF SOUNDBITE COMMUNICATIONS

John Tallarico
Vice President, Product Management
SoundBite Communications, Inc.
22 Crosby Drive
Bedford, MA 01730
[phone]

May 21, 2010

Howard J. Symons
Ernest C. Cooper
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
701 Pennsylvania Avenue, N.W.
Suite 900
Washington, D.C. 20004
[phone]

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY ........................................................................................... 1
I.

THE PROPOSED RULE CHANGE WITH RESPECT TO NONCOMMERCIAL PRERECORDED CALLS TO WIRELESS PHONES IS
INCONSISTENT WITH THE FTC’S APPROACH ..........................................................2
A.

The FTC Expressly Exempted Non-Commercial Calls from Its 2009 Rule
Requiring Express Written Consent...............................................................................2

B.

In Contrast to the FTC, the NPRM Would Extend Written Opt-In
Requirements to Non-Commercial Autodialed and Prerecorded Calls to
Wireless Phones. ............................................................................................................4

II.

THE FCC’s CURRENT PRIOR CONSENT REQUIREMENT PROTECTS
CONSUMERS WHILE PERMITTING REASONABLE NON-COMMERCIAL
COMMUNICATIONS TO WIRELESS PHONES .............................................................6
A.

As More Consumers “Cut the Cord,” Wireless Phones Are Increasingly the
Only Means to Contact Many Consumers with Important Non-Commercial
Information. ...................................................................................................................6

B.

Current FCC Policy Allowing Prerecorded Calls to Wireless Phones Where
the Called Party Has Given the Number as a Contact Number Permits
Consumers to Receive Important Non-Commercial Information in a Timely,
Efficient, Non-Intrusive Manner....................................................................................7

C.

The Proposed Rule Would Substantially Curtail Non-Commercial Calls to
Wireless Phones for Many Businesses and Other Entities by Making the Calls
Prohibitively Expensive. ................................................................................................9

D.

The Rationale for an Exception for Non-Commercial Prerecorded Calls to
Residential Phones Applies Equally to Non-Commercial Prerecorded Calls to
Wireless Phones. ..........................................................................................................11

CONCLUSION............................................................................................................................. 13

-i-

Before the
Federal Communications Commission
Washington, D.C. 20554

Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991

)
)
CG Docket No. 02-278
)
)

COMMENTS OF SOUNDBITE COMMUNICATIONS
SoundBite Communications, Inc. (“SoundBite”) submits the following comments in
response to the Notice of Proposed Rulemaking (“2010 Telemarketing NPRM” or “NPRM”) in
the above-captioned proceeding.1/
INTRODUCTION AND SUMMARY
SoundBite is a leading provider of automated voice messaging services, offering
integrated voice, text, and email messaging solutions that organizations in industries such as
collections, financial services, retail, telecom and media, and utilities rely on to send messages
for collections, customer care, and sales and marketing applications. SoundBite supports the
Commission’s stated goal of harmonizing Federal Telecommunications Commission (“FCC”)
telemarketing rules with the rules recently adopted by the Federal Trade Commission (“FTC”)
requiring express written consent for prerecorded telemarketing messages. Inadvertently or
otherwise, however, the NPRM goes far beyond harmonization with the FTC rules by
significantly curtailing not just prerecorded telemarketing messages but also autodialed and
prerecorded non-commercial messages to wireless telephones without written consent. If
adopted, the FCC’s proposed rule will essentially eliminate one of the most effective and well-

1/

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 25 FCC
Rcd 1501 (2010) (“2010 Telemarketing NPRM” or “NPRM”).

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received methods for companies, non-profit organizations, schools, and governments to contact
their customers, employees, members, and constituents with important information ranging from
delivery reminders, to meeting schedules, to school closing notices, to product recall
information, and more. The FCC’s longstanding current policy – recognizing that a person who
gives a company or organization his or her wireless telephone number as a contact number is
expressly consenting to be called at that number – is a common-sense approach that has served
the public well. The FCC should decline to adopt the proposal to extend the FTC’s express
written consent requirement to autodialed and prerecorded informational calls.
I.

THE PROPOSED RULE CHANGE WITH RESPECT TO NON-COMMERCIAL
PRERECORDED CALLS TO WIRELESS PHONES IS INCONSISTENT WITH
THE FTC’S APPROACH
While harmonizing the FCC’s telemarketing rules with the written opt-in requirement

recently adopted by the FTC is a positive goal, the FTC’s rules do not apply to autodialed and
prerecorded informational calls to wireless phones. The goal of harmonization requires no
change to existing FCC rules on such calls.
A.

The FTC Expressly Exempted Non-Commercial Calls from Its 2009 Rule
Requiring Express Written Consent.

Throughout its lengthy consideration and eventual adoption of rules requiring an express
written agreement for prerecorded telemarketing calls, the FTC consistently reassured both
companies and consumers that the rules would apply only to telemarketing calls, and would not
restrict informational calls that many consumers find valuable.2/ Introducing its proposed rule in

2/

See, e.g., Telemarketing Sales Rule, Final Rule, Federal Trade Commission, 73 Fed. Reg. 51164,
51202, n. 467 (2008) (“Thus, the amendments will not apply to purely ‘informational’ outbound calls that
do not induce the purchase of goods or services or a charitable contribution.”) (“2008 FTC Rule
Amendments”). The FTC recognized that it has no statutory authority under the Telemarketing Consumer
Fraud and Abuse Prevention Act, which authorizes the agency’s Telemarketing Sales Rule (“TSR”), to
adopt rules restricting non-telemarketing, informational calls. See Telemarketing Consumer Fraud and
Abuse Prevention Act, Pub. L. No. 103-297, 108 Stat 1545 (1994) (codified at 15 U.S.C. §§ 6101-08).

-2-

2006, the FTC reported that many commenters on the proposed rule, “both from the
telemarketing industry and consumers, exhibited a fundamental misconception” that the
proposed rule “would prevent sellers from using prerecorded messages to provide important
information to customers with whom they have an established business relationship, such as
notifications of flight cancellations, reminders of medical appointments and overdue payments,
and notices of dates and times for delivery of goods or service appointments.”3/ Instead, the FTC
explained, the proposed rule “does not apply to informational calls, unless the calls combine the
informational message with a sales invitation or promotional pitch.”4/
Reviewing comments submitted on an initial proposal to restrict prerecorded
telemarketing calls, the FTC noted that a number of “consumers expressed appreciation for
prerecorded informational messages about delivery dates for previously purchased goods or
services, medical prescription order notifications, flight cancellation alerts, and overdue bill and
appointment reminders.”5/ The FTC concluded that “[t]here is support in the record for
prerecorded informational messages—i.e., messages without any sales pitch—which are not
prohibited by the TSR; yet there is virtually none for prerecorded telemarketing messages.”6/ In

Nevertheless, as the review in this section makes clear, the FTC took pains when adopting its new rule to
assure all parties that the new rule would apply only to telemarketing calls. In its rulemaking, the FTC did
not lament a lack of jurisdiction to regulate prerecorded informational calls and, in general, affirmed the
positive value of prerecorded informational calls while, at the same time, significantly restricting
prerecorded telemarketing calls.
3/

Telemarketing Sales Rule, Denial of Petition for Proposed Rulemaking; Revised Proposed Rule
with Request for Public Comments; Revocation of Non-Enforcement Policy, Federal Trade Commission,
71 Fed. Reg. 58716, 58719 (Oct. 4, 2006) (“2006 FTC NPRM”).
4/

2006 FTC NPRM at 58719.

5/

The FTC reported that “[o]f the 77 positive consumer comments [about prerecorded messages],
more than half—47—sought only to preserve prerecorded informational messages that are not prohibited
by the TSR. These 47 consumers opposed any limitation on prerecorded ‘reminder’ messages, with some
36 of them seeking to avoid any need to sign a consent form to receive such messages.” 2006 FTC NPRM
at 58720.
6/

2006 FTC NPRM at 58723.

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proposing the more restrictive written consent rule that it eventually adopted, the FTC explained
that “[i]t is important to reiterate, however, that many (if not most) of the communications sellers
wish to send via prerecorded messages, and that customers wish to receive, are informational
communications not governed by the TSR, and thus are not prohibited by [the proposed rule].”7/
The FTC’s 2008 order adopting the written consent requirement also reported that “[t]here
is clear consumer support in the record for prerecorded informational messages that are not
prohibited by the TSR—i.e., messages that do not include a sales pitch or information about how
to make a purchase.”8/ In adopting the new rule, the FTC clearly stated that “purely
informational prerecorded messages are not covered by the TSR, and the use of such messages to
schedule service calls, delivery times, and the like therefore will not be subject to the written
agreement requirement.”9/
B.

In Contrast to the FTC, the NPRM Would Extend Written Opt-In
Requirements to Non-Commercial Autodialed and Prerecorded Calls to
Wireless Phones.

The FCC describes its 2010 Telemarketing NPRM as “an effort to remove certain
differences in the treatment of entities that operate outside of the FTC’s jurisdiction, and to
further empower residential telephone subscribers to avoid receiving telephone solicitations to
which they object” by “conform[ing] [FCC] TCPA rules to the FTC’s Telemarketing Sales
Rule.”10/ The NPRM summarizes the matters on which it seeks comment as (1) requiring
express written consent for prerecorded telemarketing calls; (2) exempting certain health-care
7/

2006 FTC NPRM at 58725.

8/

2008 FTC Rule Amendments at 51177.

9/

2008 FTC Rule Amendments at 51201. The FTC also said that it was “mindful of the legitimate
interests of both sellers and consumers in communicating immediately following a sale,” and that “sellers
may continue to use prerecorded messages for those purposes without restriction.” 2008 FTC Rule
Amendments at 51180.

10/

2010 Telemarketing NPRM , ¶ 2.

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calls from the written consent requirement; (3) requiring prerecorded telemarketing calls to
include an automated opt-out mechanism; and (4) adopting a “per campaign” standard for
measuring compliance with abandoned call limitations.11/ Each of these proposed changes
directly parallels a change adopted by the FTC in its 2008 amendments to the TSR.
Notably, the 2010 Telemarketing NPRM does not suggest any intent to adopt a written
opt-in requirement, or any other restriction, on informational calls. To the contrary, the NPRM
states that “the rule revisions proposed herein would make no changes with respect to categories
of prerecorded message calls that are not covered by our TCPA rules,” such as “calls for other
noncommercial purposes, including those that deliver purely ‘informational’ messages – for
example, prerecorded calls that notify recipients of a workplace or school closing.”12/
Nonetheless, after tentatively determining that it should adopt a written opt-in
requirement for prerecorded telemarketing calls to match the FTC’s rule, the NPRM proposes
that the FCC should “adopt the same requirement both for calls governed by section
227(b)(1)(A) (generally prohibiting automated or artificial or prerecorded message calls without
prior express consent to emergency lines, health care facilities, and cellular services), and for
calls governed by section 227(b)(1)(B) (generally prohibiting prerecorded message calls without
prior express consent to residential telephone lines).”13/
Not readily apparent from this proposal as expressed in the NPRM is the fact that the
Commission’s implementing regulations for section 227(b)(1)(B) governing calls to residential
phones include exceptions for prerecorded calls “not made for a commercial purpose” or made
for a commercial purpose but not including an advertising or telemarketing message, i.e.,
11/

Id.

12/

2010 Telemarketing NPRM, ¶ 3.

13/

2010 Telemarketing NPRM, ¶ 20.

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informational calls.14/ The effect of these exceptions is that, with regard to prerecorded calls to
residential phones, the FCC’s proposed rules exactly mirror the FTC’s new rules – requiring
written opt-in for prerecorded telemarketing calls, but not otherwise restricting prerecorded
informational calls.
The Commission’s implementing regulations for section 227(b)(1)(A), however, do not
include similar exceptions for informational calls.15/ This is a critical distinction, because it
means that the proposed rules will require written opt-in for autodialed and prerecorded
informational calls to wireless phones as well as prerecorded telemarketing calls – going
significantly beyond the FTC rules. Whether intended or not, the proposed blanket application
of the proposed rule to all calls described in section 227(b)(1)(A) would significantly alter the
Commission’s current “prior express consent” requirement applicable to autodialed and
prerecorded informational calls to wireless telephones16/ by requiring specific written consent by
a subscriber to receive such calls – even where the called party has given the number as a contact
number.
II.

THE FCC’s CURRENT PRIOR CONSENT REQUIREMENT PROTECTS
CONSUMERS WHILE PERMITTING REASONABLE NON-COMMERCIAL
COMMUNICATIONS TO WIRELESS PHONES
A.

As More Consumers “Cut the Cord,” Wireless Phones Are Increasingly the
Only Means to Contact Many Consumers with Important Non-Commercial
Information.

Increasingly, a wireless phone number may be the only means a business, employer, or
school has to contact a customer, employee, or parent. Recent data from the National Center for
Health Statistics (“NCHS”) reveal that at the end of 2009 nearly one of every four American

14/

47 C.F.R. § 64.1200(a)(2).

15/

See 47 C.F.R. § 64.1200(a)(1).

16/

47 C.F.R. § 64.1200(a)(1).

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homes had only wireless telephones, with another one in seven reporting that they had a landline
but received all or almost all of their call on wireless telephones.17/ The 24.5% of households
reporting themselves as “wireless only” continues to increase rapidly18/ and now significantly
exceeds the 14.9% of households reporting themselves as having only a landline without a
wireless phone.19/
This suggests that when asked by businesses, employers, schools, and other entities for a
contact number at least 25% of households – and possibly a significant number of the “wireless
mostly” households20/ – will give a wireless number.

A new rule (such as the written opt-in for

autodialed and prerecorded informational calls to wireless phones proposed in the NPRM) that
significantly restricts the ability of business and other entities to contact customers, employees,
or members at the very numbers the households say they prefer to be contacted will serve only to
frustrate both parties and would not constitute good public policy.
B.

Current FCC Policy Allowing Prerecorded Calls to Wireless Phones Where
the Called Party Has Given the Number as a Contact Number Permits
Consumers to Receive Important Non-Commercial Information in a Timely,
Efficient, Non-Intrusive Manner.

From the time of its earliest adoption of regulations implementing the TCPA, the FCC
has interpreted the “prior express consent” required for sending autodialed and prerecorded
messages to a wireless phone to encompass those situations where the called party has given the
calling party his or her wireless phone number as a contact number. In its 1992 TCPA Report

17/

Stephen J. Blumberg and Julian V. Luke, Wireless Substitution: Early Release of Estimates from
the National Health Interview Survey, July-December 2009, at 1 (2010)
(http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201005.htm).
18/

Id. at 2.

19/

Id. at Table 1.

20/

The NCHS study reports that 24.5% of households are “wireless only,” while an additional
14.9% “ha[ve] a landline yet received all or almost all calls on wireless telephones.” Id. at 1.

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and Order the Commission interpreted the term “prior express consent” by explaining that
“persons who knowingly release their phone numbers have in effect given their invitation or
permission to be called at the number which they have given, absent instructions to the contrary.
Hence, telemarketers will not violate our rules [on autodialed and prerecorded calls] by calling a
number that was provided as one at which the called party wishes to be reached.”21/
This interpretation is consistent with the legislative history of the TCPA. The House
report on the TCPA noted that in such situations “the called party has in essence requested the
contact by providing the caller with their telephone number for use in normal business
communications”22/ and concluded that “[t]he restriction on [prerecorded] calls to emergency
lines, pagers, and the like does not apply when the called party has provided the telephone
number of such a line to the caller for use in normal business communications.”23/
The Commission more recently affirmed its interpretation of “prior express consent” in a
declaratory ruling that held in the context of a petition for clarification about debt collections
calls that “autodialed and prerecorded message calls to wireless numbers provided by the called
party in connection with an existing debt are made with the ‘prior express consent’ of the called
party.”24/ While expressed in terms of the requested clarification regarding debt collection, the
declaratory ruling said nothing to suggest narrowing of the 1992 order that applies in principle to

21/

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC
Rcd 8752, ¶ 31 (1992) (“1992 Order”).
22/

House Report, 102-317, 1st Sess., 102nd Cong. (1991) at 13.

23/

Id. at 17.

24/

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of
ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd 559, ¶ 9 (2008) (“Declaratory
Ruling”).

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all wireless numbers given as contact numbers, whether or not “in connection with an existing
debt.”25/
This longstanding interpretation of “prior express consent” allows companies to contact
customers at the customer’s preferred contact number – even if that preferred contact number is a
wireless phone number – with autodialed and prerecorded informational calls about delivery
dates, safety recalls, appointment reminders, overdue bills, and other important matters. The
interpretation allows employers to use autodialed and prerecorded messages to call their
employees with information about work schedules or unexpected closings. The interpretation
allows non-profit organizations to use autodialed and prerecorded messages to inform their
members of important organizational information such as meeting dates and upcoming events.
The interpretation allows schools to call parents with autodialed and prerecorded truancy notices
or school closing information.
The current FCC policy allows consumers, employees, parents, and others to receive
important information by unobtrusive autodialed and prerecorded messaging at their preferred
contact number – even if that contact number is for a wireless telephone. As explained below,
adoption of the proposed rule may effectively eliminate these calls.
C.

The Proposed Rule Would Substantially Curtail Non-Commercial Calls to
Wireless Phones for Many Businesses and Other Entities by Making the
Calls Prohibitively Expensive.

Businesses, employers, governments, and other entities currently use autodialed and
prerecorded messages to communicate important information to their customers, employees,
members, and constituents. These calls are generally welcomed by the called party as providing
needed information in a nonintrusive manner. As the FTC concluded in its 2008 order adopting
25/

The declaratory ruling cited both the 1992 Order and the underlying legislative history.
Declaratory Ruling ¶ 9.

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the written consent requirement for prerecorded telemarketing calls, “[t]here is clear consumer
support in the record for prerecorded informational messages.”26 Application of the rule
proposed in the NPRM, requiring written opt-in for all auto-dialed and prerecorded calls to
wireless phones, will, however, effectively limit the ability of businesses, non-profits, and
governments to use efficient auto-dialed and prerecorded means to provide important
information to customers, members, and constituents.
Obtaining written consent to make such calls would be an expensive and time consuming
process. Not only must a calling entity develop a system to obtain written consent from each of
its customers, members, or constituents, but it must also maintain a record keeping system for the
consent forms. Additional confusion and expense would be created in cases where businesses
also ask customers for consent for prerecorded telemarketing calls. Because some significant
number of persons may want to receive informational calls, but not telemarketing calls, it may be
necessary to maintain two separate consent records for each customer.
Of course, even if the FCC’s proposed rule is adopted, informational calls could still be
made to wireless phones without written consent if the calls are hand-dialed (i.e., without the use
of an autodialer) by a live operator, but that method can be exorbitantly expensive if the calling
list is anything beyond minimal.27/
The additional costs associated with obtaining written consent and maintaining record
keeping systems, or the alternative costs of placing live calls, will mean that many businesses,
26/

2008 FTC Rule Amendments at 51177.

27/

SoundBite’s experience is that while a live operator can dial 45 to 60 calls per hour, because
many of the calls are unanswered or go to an answering machine, the operator is only able to speak to 7 to
15 persons per hour. With autodialing equipment (which screens out unanswered and answering machine
calls) an operator can actually speak to 45 to 60 persons per hour -- a significant gain in efficiency. See
also, 2008 FTC Rule Amendments at 51170, n.69 (reporting one commenter’s estimate that in 2008 a
prerecorded call costed about $0.25, while a live call to a consumer costed between $3.75 to $5.30 per
call).

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non-profits, and governments will no longer be able to afford to make autodialed and
prerecorded informational calls, no matter how much their customers, members, or constituents
want or are in need of the information that could otherwise be sent.
D.

The Rationale for an Exception for Non-Commercial Prerecorded Calls to
Residential Phones Applies Equally to Non-Commercial Prerecorded Calls to
Wireless Phones.

When initially adopting rules to implement the TCPA, the FCC recognized congressional
intent that the FCC “restrict only those categories of artificial or prerecorded voice calls which
are made for commercial purposes and will affect the privacy rights that the [TCPA] intends to
protect.”28/ Consequently, the Commission proposed adopting the exemptions that continue to
exist in its rules for prerecorded calls to residential phones: (1) calls that are not made for a
commercial purpose; and (2) calls that are made for a commercial purpose but do not include an
unsolicited advertisement or constitute a telephone solicitation.29/
The FCC described the first type as calls that “generally seek to advise the public of
matters of civic concern, political contributions or elections, or other matters of public interest,
which fall outside of the types of commercial telemarketing activity the TCPA seeks to
regulate.”30/ The second type of calls was described as messages that “albeit commercial in
nature, do not seek to sell a product or service and do not tread heavily on privacy concerns.”31/
As examples of the latter, the FCC suggested “a large business may wish to . . . advise its
employees of a late opening time due to weather; or a nationwide organization may wish to
remind members of an upcoming meeting or change in schedule.” The FCC reported that
28/

Telephone Consumer Protection Act of 1991, 9 FCC Rcd 2740, ¶ 25 (1992) (“1992
Telemarketing NPRM”).
29/

See 47 C.F.R. § 64.1200(a)(2).

30/

1992 Telemarketing NPRM ¶ 10.

31/

Id. ¶ 11.

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“[s]uch informational calls do not offer a product or service to the called party and are an
efficient method to communicate a message to a large number of people.”32/
The same rationale that led the Commission to adopt exceptions for prerecorded
informational calls to residential phones apply no less to prerecorded informational calls to
wireless phones, particularly now that (as explained above) a significant and growing portion of
the population uses wireless phones as their main – or only – telephone. Informational calls,
whether made to a residential phone or a wireless phone are “an efficient method to
communicate a message to a large number of people” and “do not tread heavily on privacy
concerns” the TCPA was adopted to protect. The FCC has made a logical distinction between
telemarketing and informational calls with regard to calls made to residential phones. There is
no reason not to apply a similar logical distinction to create differing levels of protection for
consumers with regard to autodialed and prerecorded telemarketing and informational calls to
wireless phones.

32/

Id.

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CONCLUSION
For the reasons explained above, the Commission should revise the rule changes
proposed in the NPRM to continue to allow autodialed and prerecorded informational calls to
wireless telephones where the called party has given the wireless number as a contact number.

Respectfully submitted,

John Tallarico
Vice President, Product Management
SoundBite Communications, Inc.
22 Crosby Drive
Bedford, MA 01730
[phone]

_/s/ Howard J. Symons_______________
Howard J. Symons
Ernest C. Cooper
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
701 Pennsylvania Avenue, N.W.
Suite 900
Washington, D.C. 20004
[phone]

May 21, 2010

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