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CGB Seeks Comment on Autodialed Delivery Notification Calls

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Released: October 16, 2012

Before the

Federal Communications Commission

Washington, DC 20554


In the Matter of
)


)

Cargo Airline Association
)
CG Docket No. __________
Petition for Expedited Declaratory Ruling
)

Regarding Non-Telemarketing
)

Package Notifications
)


)

Rules and Regulations Implementing the
)
CG Docket No. 02-278
Telephone Consumer Protection Act of 1991
)


PETITION FOR EXPEDITED DECLARATORY RULING

The Cargo Airline Association (“CAA”),1 pursuant to Section 1.2 of the Federal
Communications Commission’s (“Commission”) rules,2 hereby respectfully submits this Petition
for Expedited Declaratory Ruling regarding the Telephone Consumer Protection Act (“TCPA”)3
and the Commission’s TCPA rules.4 CAA requests that the Commission clarify that, in certain
limited circumstances, prior express consent to receive autodialed and prerecorded non-
telemarketing calls and messages (including text messages) under the TCPA can be provided
through an intermediary or associated third party. Specifically, the Commission should confirm
that delivery companies can rely on representations from package senders that a package
recipient consents to receiving autodialed and prerecorded customer service notifications
regarding the shipment through wireless telephone numbers. Alternatively, the Commission

1 CAA is the nationwide trade organization representing the interests of the United States all-cargo air
transportation industry. CAA members include ABX Air, Atlas Air, Capital Cargo, DHL, FedEx
Express, Kalitta Air and UPS Airlines.
2 47 C.F.R. § 1.2.
3 47 U.S.C. § 227.
4 47 C.F.R. § 64.1200 et seq.

should declare that package delivery notifications are exempt from the TCPA’s restriction on
autodialed and prerecorded calls and messages to wireless telephone numbers.

I.

CAA MEMBERS NEED TO PROVIDE TIME-SENSITIVE PACKAGE DELIVERY
NOTIFICATIONS.


CAA members transport cargo throughout the world to meet customer demand. Our
members transport more than 87% of total domestic Revenue Ton Miles5 and sort and deliver
millions of packages nightly. In the course of this business, our members need to notify package
recipients of the shipment, arrival, or scheduled delivery date of a package; failed attempts to
deliver specific packages; or that a package is available for pickup at a specific carrier location.
Such notifications maximize convenience to package recipients, facilitate the timely delivery of
packages, and allow CAA members to provide delivery services in an efficient, cost-effective
manner.
Delivery notifications can also significantly reduce instances of package theft from front
porches and building lobbies, which has become a nationwide problem.6 Incidents of package
theft increase sharply around the winter holidays, and police report that some thieves will clear

5 FAA Aerospace Forecast, March 2011.
6 See, e.g., Gigi Barnett, Stolen Packages From Front Porches a Statewide Trend, CBS BALTIMORE (Dec.
29, 2011, 6:08 p.m.), http://baltimore.cbslocal.com/2011/12/29/stolen-packages-from-front-porches-is-a-
statewide-holiday-trend/; Andrew Adams and Shara Park, Christmas Packages Stolen From Front Porch
Prompt Police Warnings
, DESERET NEWS (Nov. 30, 2011 5:53 p.m.),
http://www.deseretnews.com/article/705395157/Christmas-packages-stolen-from-porch-prompt-police-
warnings.html; Jack Durschlag, Police Blotter: Shoplifting, Stolen UPS Packages, WEST ORANGE PATCH
(May 30, 2012), http://westorange.patch.com/articles/police-blotter-shoplifting-stolen-ups-packages;
Reports of Stolen Packages on the Rise, CBS 2 CHICAGO (Dec. 22, 2011, 10:06 p.m.),
http://chicago.cbslocal.com/2011/12/22/reports-of-stolen-packages-on-the-rise/; German Village Sees
Increase in Stolen Packages
, 10TV (Feb. 27, 2012, 4:42 p.m.),
http://www.10tv.com/content/stories/2012/02/27/columbus-german-village-sees-increase-in-stolen-
packages.html; New Video Shows Another Alleged Package Theft, KTRK (Dec. 16, 2011),
http://abclocal.go.com/ktrk/story?section=news/local&id=8469619; Matthew Hathaway, Tips to Avoid
Having Holiday Packages Stolen off Your Doorstep
, ST. LOUIS POST-DISPATCH ONLINE (Dec. 21, 2010,
11:43 a.m.), http://www.stltoday.com/business/columns/savvy-consumer/tips-to-avoid-having-holiday-
packages-stolen-off-your-doorstep/article_647edf42-0d2a-11e0-baaa-00127992bc8b.html.

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an entire neighborhood of packages during these high-volume periods.7 In the Boston area, this
past holiday season was one of the worst on record for package theft. As one local newspaper
noted, “the dismal state of the economy – and the uptick in online shopping and shipping –
seems to be making conditions ripe for porch-picking.”8
When signatures are required for delivery, one of our member carriers reports that
making pre-delivery notification calls to residential recipients with wireline service improves the
likelihood of a successful delivery by thirty percent. Its customer research indicates that sixty-
one percent of residential recipients that missed a delivery did not know that the delivery was
coming or when to expect delivery. Pre-delivery notification calls allow the package recipients
to make arrangements for someone to be home and sign for the package or to make other
arrangements with the package delivery company. For recipients that do not want to receive pre-
delivery notification calls, our member companies allow them to opt out of receiving further
calls, or if the recipient prefers, they can register to receive text or email notifications instead.

Unfortunately, because of uncertainty over the scope of the TCPA’s restrictions,9 CAA
members currently provide only a limited number of consumer-friendly package notifications to
wireless telephone numbers.10 CAA respectfully requests that the Commission recognize the
public interest in receiving time-sensitive package notifications and issue a declaratory ruling

7 See, e.g., Sarah Batista, Police See Increase in Stolen Holiday Packages, WBTV (Dec. 6, 2011,
6:34 p.m.), http://www.wbtv.com/story/16203543/police-see-increase-in-stolen-holiday-packages.
8 Stephanie Ebbert and Brian R. Ballou, Gift Deliveries Prove Ripe for Theft, BOSTON GLOBE (December
22, 2011), http://articles.boston.com/2011-12-22/news/30547494_1_packages-fruit-basket-porches.
9 The Commission may issue a declaratory ruling terminating a controversy or removing uncertainty. 47
C.F.R. § 1.2.
10 For example, some consumers have provided their wireless telephone number to a CAA member as part
of an account with that member.

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that will enable CAA members to contact package delivery recipients on their wireless telephone
numbers.

II.

THE COMMISSION SHOULD CONFIRM THAT DELIVERY COMPANIES CAN
RELY ON REPRESENTATIONS FROM PACKAGE SENDERS TO ESTABLISH
“PRIOR EXPRESS CONSENT” UNDER THE TCPA.


The TCPA requires parties to obtain “prior express consent” from the called party to
place non-emergency calls using automatic telephone dialing systems (“autodialers”) or artificial
or prerecorded voice messages to, inter alia, wireless telephone numbers.11 Parties also must
obtain prior express consent from the called party to place artificial or prerecorded voice calls
and messages to residential telephone numbers, subject to certain exemptions.12
Through this Petition, CAA asks the Commission to clarify that, in certain limited
circumstances, prior express consent to receive autodialed and prerecorded non-telemarketing
calls and messages (including text messages) on wireless telephones under the TCPA can be
provided through an intermediary or associated third party. The Commission should confirm
that delivery companies can rely on representations from package senders that a package
recipient consents to receiving autodialed and prerecorded customer service notifications
regarding the shipment. Specifically, the provision of a package recipient’s wireless telephone
number by a package sender should establish prior express consent for shipping companies to
send notifications related to that package.

11 47 U.S.C. § 227(b)(1)(A); see also 47 C.F.R. § 64.1200(a)(1). The Commission has held that short
message service (“SMS”) messages are “calls” under the TCPA. See Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991
, Report and Order, 18 FCC Rcd 14014
¶ 165 (2003).
12 47 U.S.C. § 227(b)(1)(B); see also 47 C.F.R. § 64.1200(a)(2). As discussed below, the Commission
has already exempted package shipment and delivery notifications from the TCPA’s restriction on
prerecorded voice message calls to residential telephone numbers.

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A package sender initiates a shipment and provides all of the necessary information –
including the recipient’s address and contact information – to the delivery company. By
providing the sender with a contact telephone number, the recipient has authorized calls to that
number regarding the delivery, whether by the delivery company or by any other member of the
supply chain that facilitates delivery. Thus, there is a preexisting relationship between the
package recipient and the package sender (on whose behalf the notification call is made). The
package sender is effectively acting as an intermediary or associated party for the package
recipient, consistent with the flow of goods within the supply chain.
CAA members, on the other hand, typically do not have any direct contact with package
recipients until the package has been shipped (and usually only at the time of delivery). Delivery
companies must rely on the information provided by the sender to complete the transaction and
have no other way of contacting a package recipient. In fact, it would be impossible for them to
provide millions of package notifications each day if they first had to obtain consent
independently from each package recipient.13 For example, manually dialing a wireless
telephone number to provide a notification – or even to seek separate consent – is not an option
due to the number of packages delivered each day.
The Commission has previously recognized that a party that obtains consent or other
authority to make an automated call can transfer that consent to an associated party. For
example, in 2008, the Commission found that third-party debt collectors could place autodialed
and prerecorded message calls to wireless telephone numbers that had been provided in
connection with an existing debt, stating that such calls “are made with the ‘prior express

13 See also, e.g., Petition for Expedited Declaratory Ruling and Clarification, GroupMe, Inc., CG Docket
No. 02-278, 16, 18 (filed Mar. 1, 2012) (noting that obtaining consent directly from a text message
recipient “is not possible in all instances even when the recipient . . . would like to receive the text
message”).

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consent’ of the called party.14 In addition, the Commission in 2005 clarified that State Farm
agents could rely on State Farm’s existing business relationship with policyholders to place
otherwise restricted telemarketing calls to those policyholders on behalf of State Farm.15 The
Commission should likewise confirm here that package senders can transfer consent for delivery
companies to place autodialed and prerecorded non-telemarketing calls and messages to the
wireless telephone numbers of package recipients.
Confirming the ability of delivery companies to rely on representations from package
senders would also be consistent with the Commission’s recent Robocall Report and Order.16 In
that decision, the Commission acknowledged that “wireless services offer access to information
that consumers find highly desirable.”17 It highlighted the benefits of informational calls to
wireless telephone numbers – including package delivery calls – and affirmed that it did not want
to “impede” or “unnecessarily restrict” these “highly desirable” calls.18

III.

ALTERNATIVELY, THE COMMISSION SHOULD DECLARE THAT PACKAGE
DELIVERY NOTIFICATIONS ARE EXEMPT FROM THE TCPA’S RESTRICTION
ON AUTODIALED AND PRERECORDED CALLS AND MESSAGES TO
WIRELESS TELEPHONE NUMBERS.

The TCPA grants the Commission authority to exempt certain calls and messages from
its restrictions. For example, it can exempt, from the restriction on autodialed and prerecorded
calls and messages, such calls and messages to wireless telephone numbers “that are not charged

14 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of
ACA International for Clarification and Declaratory Ruling
, Declaratory Ruling, 23 FCC Rcd 559 ¶ 9
(2008).
15 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of
State Farm Mutual Automobile Insurance Company for Clarification and Declaratory Ruling
,
Declaratory Ruling, 20 FCC Rcd 13664 (2005).
16 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket
No. 02-278, Report and Order, FCC 12-21 (rel. Feb. 15, 2012) (“Robocall Report and Order”).
17 Id. ¶ 29.
18 Id. ¶¶ 21, 29.

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to the called party, subject to such conditions as the Commission may prescribe as necessary in
the interest of the privacy rights the provision is intended to protect.”19 Although package
delivery notifications are already exempt from the TCPA’s restriction on prerecorded voice
message calls to residential telephone numbers,20 the Commission has not exempted such
notifications from the restriction on autodialed and prerecorded voice calls and messages to
wireless telephone numbers. The Commission should recognize the public interest in receiving
time-sensitive package notifications and issue a declaratory ruling clarifying that such
notifications made through autodialed and prerecorded calls and messages (including text
messages) are not restricted by the TCPA.
CAA appreciates and supports the TCPA’s goal of restricting a barrage of telemarketing
calls to wireless (and residential) telephone numbers. Package delivery notifications, however,
do not involve any telemarketing, solicitation, or advertising. Nor do they trigger the other
concerns that Congress was attempting to address through the TCPA, such as dialing random or
sequential numbers and endangering public safety by tying up blocks of telephone lines.21 And
there is no invasion of privacy resulting from these notifications, as they are connected to
packages already being delivered to a recipient’s home or other designated address.
The benefits to consumers, and the reality of today’s communications landscape,
underscore the need for the Commission to find that the TCPA was not intended to restrict these

19 47 U.S.C. § 227(b)(2)(C) (stating that the Commission may make such exemption “by rule or Order”).
The Commission has exempted autodialed and prerecorded message calls from wireless carriers to their
customers when the customer is not charged. Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991
, Report and Order, 7 FCC Rcd 8752 ¶ 43 (1992).
20 See 47 C.F.R. § 64.1200(a)(2)(iii)(providing an exemption for calls made for a commercial purpose but
that do not include or introduce an unsolicited advertisement or constitute a telephone solicitation); see
also
47 C.F.R. § 64.1200(a)(2)(iv) (providing an exemption for calls to persons with whom the caller has
an established business relationship at the time the call is made).
21 See, e.g., S. Rep. No. 102-178, at 1-2 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1969; H.R. Rep.
No. 102-317, at 10 (1991); 137 Cong. Rec 35303 (1991); 137 Cong. Rec. 30821 (1991).

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brief notifications. As noted above, members of the all-cargo air carrier industry provide an
important public service both by, for example, notifying package recipients of a shipment or an
intended delivery date and by informing them that an attempted delivery has failed. In the latter
case, such calls may also notify the package recipient where a package can be picked up if a
delivery has failed. These notifications maximize consumer convenience and promote timely,
efficient, and cost-effective package delivery services. The notifications are sent only when a
package is being delivered, and only to the intended package recipient. Moreover, as explained
in Section II, it would be impossible for delivery companies to provide millions of package
notifications each day if they first had to obtain consent independently from each package
recipient. They have no alternative but to rely on the information provided by the package
sender, and the volume of packages delivered each day requires the use of autodialed or
prerecorded calls and messages.
In addition, in today’s world there is an ever-shrinking difference between residential and
wireless telephone numbers. Indeed, a growing percentage of U.S. households are abandoning
residential service – almost one-third of all households only have wireless telephones,22 and
more than half of consumers aged 25-29 are living in wireless-only households.23 As a reflection
of this trend, a CAA member has indicated that for residential deliveries, more than half of the
phone numbers provided by package shippers are mobile numbers; consequently, this represents

22 See, e.g., CDC Study: Wireless Substitution: Early Release of Estimates From The National Health
Interview Survey, July-December 2010, available at
http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201106.htm; see also Wireless Substitution:
State-Level Estimates from the National Health Interview Survey, January 2007-June 2010, National
Health Statistics Reports (Apr. 20, 2011), available at http://www.cdc.gov/nchs/data/nhsr/nhsr039.pdf
(finding that the percentage of wireless-only U.S. households doubled from 2007 to 2010).
23 Lance Whitney, Over Half of Late-20s Crowd Own Cell Phones Only, CNET (Dec. 22, 2010), at
http://news.cnet.com/8301-1035_3-20026395-94.html.

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a significant population of package recipients that are not receiving the benefit of pre-delivery
notification calls.
Alongside the growth in wireless-only households has been the evolution of wireless
service away from per-minute charges. Many consumers now no longer incur any per-call
charges for wireless service, instead opting for buckets of minutes and unlimited calling and
messaging plans. An isolated, brief notification (e.g., as a short prerecorded message or a text
message related to a specific package delivery) would generally not impose additional charges.
Thus, the Commission can find that delivery notifications now constitute calls “that are not
charged to the called party.” In addition, as noted above, CAA’s member companies enable
consumers to opt out of receiving future notifications.

IV.

CONCLUSION

For the foregoing reasons, CAA urges the Commission to confirm that delivery
companies can rely on representations from package senders that a package recipient consents to
receiving autodialed and prerecorded customer service notifications regarding the shipment.
Alternatively, the Commission should declare that package delivery notifications are exempt
from the TCPA’s restriction on autodialed and prerecorded calls and messages to wireless
telephone numbers.







9






Respectfully submitted,










Stephen A. Alterman




President




Cargo Airline Association




1620 L Street, NW




Suite 610




Washington, D.C. 20036




202-293-1030




salterman@cargoair.org





August 17, 2012

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