Pimental v. Google, Inc. et al

Filing 69

Request for Judicial Notice re 64 Motion to Stay Litigation Based on Recently Filed FCC Petition, filed by Google, Inc., Slide, Inc.. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9)(Related document(s) 68 ) (Reiten, Joshua) (Filed on 4/16/2012) Modified on 4/17/2012 (jlm, COURT STAFF).

EXHIBIT 9

2550 M Street, NW

PAllON BOGGSllP
ATTORNEYS AT LAW

Washington, DC 20037-1350
202-457-6000

Facsimile 202-457-6315
www.pattonboggs com

February 16, 2012

Ryan W. King
[e-mail]

FILED/ACCEPTED
FFR ,1 6 7017

VIA HAND DELIVERY

Federal Communicat1ons Commission
Marlene H. Dortch
Office of the Secretary
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, D_C 20554

Re:

Petition for Expedited Declaratory Ruling; CG Docket No. 02-278
SoundBite Communications, Inc.

Dear Ms. Dortch:
On behalf of SoundBite Communications, Inc. ("SoundBite"), please fInd enclosed the original
and four copies of SoundBite's Petition for Expedited Declaratory Ruling (CG Docket No. 02278).
An extra copy of the Petition also is enclosed. Please stamp this "stamp-in" copy as received and
return it to the courier. If you have any questions regarding this fIling, please do not hesitate to
contact me at [phone] or [e-mail].

Ryan W. King
Associate

No. of Copies rsc'd

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5220539
Washington DC

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New Jersey

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Denver

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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of
SoundBite Communications, Inc.
Petition for Declaratory Ruling

To:

)
)
)
)
)
)

CG Docket No. CG 02-278

The Commission

Petition for Expedited Declaratory Ruling
SoundBite Communications, Inc. ("SoundBite"), through counsel, and pursuant to
Section 1.2 of the Federal Communication Commission's ("Commission" or "FCC") rules, I
respectfully petitions the Commission to issue a Declaratory Ruling on a narrow issue with
significant implications. SoundBite requests an FCC declaration that when a subscriber sends a
text message choosing to opt-out of receiving future text messages from a SoundBite client, and
a one-time immediate reply is sent back via text message to that customer confirming the opt-out
request, that confirmation message is not a violation of the Telephone Consumer Protection Act
("TCPA,,)2 or Section 64.1200 of the Commission's rules. 3
Unfortunately, SoundBite and other companies have been targeted with multi-million
dollar class action lawsuits based on these one-time confirmation messages. The lawsuits allege
that these single confirmation text messages are a violation of the TCP A. In fact, there have
been at least twelve lawsuits filed on this matter, including against well known companies such
147 C.F.R. § 1.2.

2 Telephone Consumer Protection Act of 1991,47 U.S.c. § 227 (2000 & Supp. 2005) ("TCPA").
3

47 C.F.R. § 64.1200.

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as Red Box, American Express, Barclay's Bank, Citibank, Nascar, NFL, and Gamestop.4 As a
result of these lawsuits, and additional lawsuits that have been threatened, companies that
lawfully utilize mobile marketing strategies to sustain and grow their businesses are exposed to
hundreds of millions of dollars of potential liability, and that exposure is growing by the day.

I.

BACKGROUND
SoundBite, founded in 2000, is a publicly traded company headquartered in Bedford,

Massachusetts, with additional offices in Irvine, Dallas and London, UK. SoundBite specializes
in customer communications, and works with a wide range of other companies, including banks,
retailers, utilities, and wireless operators, to send text messages and other messages on their
behalf. SoundBite has approximately 400 end-user clients, including many Fortune 500
companIes.
As a matter of consumer best practices, and consistent with general FCC directionS and
specific industry guidelines 6 on opt-out confirmations, SoundBite sends an immediate
confirmation reply message when a consumer sends a request to stop receiving future text
messages from a SoundBite client. The Mobile Marketing Association ("MMA"), a non-profit
trade association representing 600 companies in over forty countries around the world,
See e.g., Annoni v. FYIsms.com, LLC, Case No. ll-cv-1603 (N.D. Ill.); Emanuel v. NFL
Enterprises, LLC, ll-cv-1781 (S.D. Cal.); Gutierrez et al. v. Barclays Group et al., Case No.
10-cv-l012 (S.D. Cal); Holt v. Redbox Automated_Retail, LLC, Case No. ll-cv-3046 (S.D.
Cal.); Jaber v. Nascar Holdings, Inc., Case No. ll-cv-1783 (S.D. Cal.); Karayan v. GameStop
Corp.·and GameStop, Inc., Case No. ll-cv-1777 (S.D. Cal.); Lo v. Oxnard European Motors,
LLC et aI., Case No. ll-cv-l009 (S.D. Cal.); Maleksaeedi v. American Express Centurion Bank,
Case No. ll-cv-790 (S.D. Cal.); Ryabyshchukv. CWbank, Case No. ll-cv-1236 (S.D. Cal.).
4

See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
Report and Order, FCC 03-153,18 FCC Rcd 14014, ~ 93 (2003) ("2003 TCPA Order").

5

6

See Mobile Marketing Association, U.S. Consumer Best Practices, Version 6.0, § 1.6 (March 1,

2011), available at mmaglobal.comlbestpractices.pdf. ("MMA Best Practices").

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--------------------------- -- ~ ----

emphasizes the importance of sending such a confirmation of consumer opt-out requests.
Pursuant to the MMA Consumer Best Practices guidelines, if a consumer opts out of receiving
future text messages from a company, the company is required to send that consumer a
confirmation text message confirming his or her request to opt-out. 7 Wireless operators,
aggregators and CTIA-The Wireless Association® require companies such as SoundBite to
follow the MMA best practices before they will enable and allow text messaging campaigns on
their networks. Therefore, when a SoundBite client receives an opt-out request from an
individual subscriber, SoundBite processes that request and, as recommended by the MMA, and
as required by the wireless operators, sends a one-time confirmation text message to that
individual subscriber within minutes of receipt of the opt-out request. The reply message
confirms that the request was received and that the subscriber requesting the opt-out will no
longer receive text messages from that company.

II.

ONE-TIME TEXT MESSAGE OPT -OUT CONFIRMATIONS, SENT WITHIN
MINUTES OF RECIEPT OF THE REQUEST, DO NOT VIOLATE THE TCPA
One-time confirmation text messages, sent within minutes of receipt of the request, and

sent only to those consumers requesting the opt-out, are not a violation of the TCP A or the
Commission's rules. Such messages fall under the grace period that the FCC has applied to
TCPA opt-out requests. They are targeted messages and are not sent through an automatic
telephone dialing system. Furthermore, such confirmation messages are in the public interest
and consistent with sound public policy.

7

MMA Best Practices at § 1.6.

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.,

J

- - --

A.

SoundBite's Confirmation Text Messages Fall Under the Appplicable
Grace Period for TCP A Opt-Out Requests

The Commission allows telemarketers up to 30 days after an opt-out request is made to
remove the phone numbers from their systems. 8 The FCC has stated that text messages are
"calls" under the TCP A. Because the FCC treats texts as calls, the 30-day grace period for optout requests that the FCC applies to voice calls must equally apply to text messages. It is also
reasonable for the FCC to take into account that because a system processing text opt-out
requests may work more quickly than a voice-based system, a shorter time period could apply.
In choosing 30 days as the appropriate grace period for calls, the FCC took into account the
varying capabilities of different entities, depending on their size:
[W]e decline to amend the timeframe by which telemarketers must honor do-notcall requests. In concluding that telemarketers must honor such requests within
30 days, we considered both the large databases of such requests maintained by
some entities and the limitations on certain small businesses. We also determined
that telemarketers with the capability to honor company-specific do-not-call
requests in less than thirty days must do SO.9
The FCC also chose to apply a 30-day grace period for opt-out requests related to
facsimiles: "[T]he recipient may make a request to the sender of the advertisement not to send
any future advertisements to a telephone facsimile machine or machines and that failure to

8

See 2003 TCP A Order, Appendix B at ~ 32 ("[W]e determined to require that both large and

small businesses must honor do-not-call requests within 30 days from the date such a request is
made, instead of requiring that businesses honor requests in less time.")(emphasis added); see
also FCC Guide: Unwanted Telephone Marketing Calls, available at
http://www.fcc.gov/guides/unwanted-telephone-marketing -calls ("Telemarketers covered by the
National Do-Not-Call Registry have up to 31 days from the date that you register your telephone
number to remove it from their call lists and stop calling you. ")( emphasis added).
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Second
Order on Reconsideration, FCC 05-28, 20 FCC Rcd 3788, ~ 22 (2005) ("2005 TCPA Second
Order on Reconsideration").

9

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comply, within 30 days, with such a request meeting the requirements under paragraph (a)(3)(v)
is unlawful."l0
SoundBite defers to the FCC regarding what would be the appropriate grace period for
text messages. Whatever grace period the FCC ultimately chooses to apply to text messages,
SoundBite seeks a declaration that the one-time confirmation text message that SoundBite sends
within minutes of receiving an opt-out request should fall within the applicable grace period.

B.

SoundBite's Confirmation Text Messages Are Not Sent Using an
Automatic Telephone Dialing System

The lawsuits allege that because SoundBite and its client companies send an automatic
confirmation to subscribers requesting an opt-out, the confirmation messages are sent through an
"automatic dialing system" as defined by the TCP A. This is incorrect. As explained below, the
system used by SoundBite to send opt-out confirmations is not an "automatic dialing system."
Accordingly, there is no violation of the TCPA or the Commission's rules.
Pursuant to the TCPA and the Commission's implementing rules, calls made to a wireless
telephone number using an automatic telephone dialing system are prohibited:
It shall be unlawful for any person within the United States, or any person outside
the United States if the recipient is within the United States(A) to make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice- ...
(iii) to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for the call; ... 11

10

47 C.F.R. § 64.1200(a)(3)(iii)(B)(emphasis added).

II

47 U.S.C § 227(b)(l)(A)(iii); see also 64.1200(a)(l)(iii).

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An automatic telephone dialing system is "equipment which has the capacity (A) to store
or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.,,12 SoundBite's automatic confirmatory response does not have the
capacity to "store or produce telephone numbers to be called, using a random or sequential
number generator." The software used to send SoundBite's confirmation text messages to those
individuals requesting an opt-out does not allow random or sequential calls. The software only
allows confirmation messages to those consumers specifically requesting an opt-out.
The FCC has specifically recognized that it must evaluate capacity in the context of
hardware as it is programmed with software. 13 For the SoundBite system, when a consumer
replies to a text with "STOP" or other appropriate opt-out keyword from their mobile device, the
SoundBite system receives the stop request along with the mobile number from which it
originated. The system is programmed to put the individual number on a separate list (a type of
"do not text" list), with a one-time confirmation text message sent only to that number. The
SoundBite system has absolutely no capacity to store, look-up, or dial in any random or
sequential order - there is only a precise, one-time response to an individual subscriber's opt-out
text message request that goes only to the specific device through which the opt-out request was
made.
Moreover, the FCC has explained that calling numbers that are "not generated in a
random or sequential fashion" falls outside the TCPA's prohibitions.

12

14

The individual

47 U.S.C. § 227(a)(1); 64.1200(f)(1).

13 2003 TCP A Order at ~ 131 ("The hardware, when paired with certain software, has the
capacity to store or produce numbers and dial those numbers at random, in sequential order, or
from a database of numbers.").
14 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report
and Order, FCC 92-443, 7 FCC Rcd 8752, ~ 47 (1992) ("1992 TCPA Order") (stating that the

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confirmation messages sent by SoundBite are not generated in any random or sequential fashion.
These are immediate replies sent directly to those individual consumers requesting the opt-out,
acknowledging and confirming their opt -out request.
In summary, the SoundBite system does not have the capacity to generate and send
confirmations of opt-out requests in a random or sequential order; nor are the opt-out
confirmations either random or sequential. Accordingly, SoundBite's confirmations do not
violate the TCP A.

C.

Sending One-Time Confirmation Text Messages Is Consistent With
Good Public Policy

Opt-out confirmations are consistent with good consumer policy and promote the public
interest. The FCC itself has expressed the importance of consumers receiving some type of
confirmation that a company has received their opt-out request, specifically emphasizing that
telemarketers should confirm that they have recorded a confirmation request at the time the
consumer makes an opt-out request:
We decline at this time to require telemarketers to make available a toll-free
number or website that would allow consumers to register company-specific donot-call requests or verify that such a request was made with the marketer. We
also decline to require telemarketers to provide a means of confirmation so that
consumers may verify their requests have been processed at a later date.
Telemarketers should, however. confirm that any such request will be recorded at
the time the request is made byrne cOllswner. 15
Also, the MMA, in conjunction with all major mobile operators in the United States, has
emphasized that opt-out confirmations are good, consumer-friendly practices. The MMA
published the Consumer Best Practices as a guideline for business usage of text messaging.
prohibitions of the TCPA "clearly do not apply to functions like 'speed dialing,' 'call
forwarding,' or public telephone delayed message services (PTDMS) because the numbers called
are not generated in a random or sequential fashion.").
15

2003 TCPA Order at ~ 93 (emphasis added).

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Pursuant to these Consumer Best Practices, when a company receives an opt-out request via text,
the phone number must be opted-out of the system and the program must respond with a
confirmation text message stating that the consumer has been opted-out of the campaign and will
no longer receive any messages from that entity. 16 Indeed, the CTIA Compliance Monitoring
and Enforcement Playbook, which serves as the basis for industry audits of SMS text messages,
specifically lists "[f]ailure to confirm service termination" in response to a user opt-out message

. atlOn.
as a comp1·
lance VlO1· 17
The mobile industry has widely endorsed opt-out confirmation text messages as a best
practice, as a superior consumer experience, and as being compliant with federal and state laws.
CTIA (which has represented the wireless communications industry since 1984), in its testimony
before the House Subcommittee on Communications & Technology regarding the Mobile
Informational Call Act of 20 11, stated:
As with efforts to obtain express consent and protect user privacy through the use
of double opt-in mechanisms, acknowledging receipt of a "STOP" message by
sending the customer a text message is a reasonable business practice that
provides consumers with confirmation that their request has been received, and
those who employ it should not become targets for litigation. I 8
Moreover, such one-time confirmation text messages are not what the TCPA was aimed
at preventing. As the FCC explained, the TCPA was enacted to eliminate calls that cause
consumers to feel annoyed by "hang-ups" or "dead air," or feel "frightened, threatened and
MMA Best Practices at § 1.6-4 ("When STOP, or any of the opt-out keywords above, is sent
to a program, the program must respond with an MT [mobile-terminated] message, whether or
not the subscriber is subscribed to the program.").
16

CTIA Compliance Monitoring and Enforcement Playbook (Oct. 25, 2011), available at
http://www.wmcglobal.com/images/CTIA playbook. pdf.
17

House Energy and Commerce Subcommittee on Communications & Technology Hearing,
"H.R. 3035, The Mobile Informational Call Act of2011," Testimony of Michael Altschul,
General Counsel, CTIA (November 4,2011).
18

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harassed.,,19 The TCPA was also enacted to protect the public from unwanted privacy intrusions
and from disruptions to essential public safety services caused by random or sequential number
generators jamming PBXs and flooding local exchanges?O None of these concerns are
implicated by the prompted and isolated SoundBite confirmation text messages.

III.

CONCLUSION

The type of immediate, one-time reply messages sent by SoundBite to confirm a
subscriber's opt-out request is consistent with the TCPA and consistent with the public interest.
SoundBite respectfully requests an expedited declaratory ruling that such messages do not
violate the TCP A.
Respectfully submitted,
SoundBite Communications, Inc.

BY: ~P(S~'
Robert Leahy
John Tallarico
SoundBite Communications, Inc.
22 Crosby Drive
Bedford, MA 01730

Monica Desai
Patton Boggs LLP
2550 M Street NW
Washington, DC 20037
[phone]
Its Counsel

Dated: February 16,2012

19 2003 TCPA Order at ~ 2 (emphasis added).
See S. REP. NO. 102-178 at 5 reprinted in 1991 U.S.C.C.A.N. 1968, 1972-73 (1991) ("The
Committee believes that Federal legislation is necessary to protect the public from automated
telephone calls. These calls can be an invasion of privacy, an impediment to interstate
commerce, and a disruption to essential public safety services.").
20

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