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CGB Seeks Comment on Pet for Exp Dec Ruling on Autodialer Issue

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Released: July 9, 2014


Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.


Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-977

Released: July 9, 2014




CG Docket No. 02-278

Comment Date: August 8, 2014

Reply Comment Date: August 25, 2014

On May 27, 2014, Milton H. Fried, Jr. and Richard Evans filed a Petition for Expedited

Declaratory Ruling1 that asks the Commission to clarify whether certain equipment, individually or

combined, that is used to transmit text messages constitutes an “automatic telephone dialing system”

within the meaning of the Telephone Consumer Protection Act (TCPA)2 and the Commission’s related


We seek comment on the issues raised in the Petition.

The TCPA makes it “unlawful for any person within the United States, or any person outside the

United States if the recipient is within the United States . . . 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 . . . 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.”4

The TCPA defines an “automatic telephone dialing system”

(ATDS) as “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.”5

The Petition brings before the Commission a primary jurisdiction referral from the United States

District Court for the Southern District of Texas.6

According to the Petition, the underlying litigation

arose after Sensia Salon, Inc. engaged Textmunications, Inc. to conduct marketing on Sensia’s behalf.7

1 Petition for Expedited Declaratory Ruling on Autodialer Issue, CG Docket No. 02-278, filed by Milton H. Fried,

Jr. and Richard Evans on May 27, 2014 (Petition).

2 Codified as 47 U.S.C. § 227.

3 47 C.F.R. § 64.1200.

4 47 U.S.C. § 227(b)(1)(A)(iii); see also 47 C.F.R. § 64.1200(a)(1)(iii).

5 47 U.S.C. § 227(a)(1); see also 47 C.F.R. § 64.1200(f)(2).

6 Fried v. Sensia Salon, Inc., No. 4:13-cv-00312 (S.D.Tex. Nov. 27, 2013).

7 Petition at 4.


Textmunications, which allegedly stored Sensia’s customer data in its equipment and databases,

contracted with Air2Web to use Air2Web’s equipment to transmit SMS text messages containing

Sensia’s marketing content.8

Air2Web allegedly sent these text messages through various common

carriers to the cellular telephones of Sensia’s former or current customers.9

Fried and Evans, former

customers of Sensia, filed a complaint in the United States District Court for the Southern District of

Texas, claiming violations of the TCPA and the Commission’s associated rules because they allegedly

received text messages from Sensia on their cellular telephones without prior express consent.10

According to the Petition, Textmunications and Air2Web have argued in the underlying litigation

that they did not use an ATDS to call Fried and Evans because the hardware utilized by Air2Web does

not have the capacity to store or produce numbers and dial those numbers at random, in sequential order,

or from a database of numbers, with or without human intervention.11

The Petition asserts that Sensia,

Textmunications, and Air2Web each had a high degree of involvement in the transmissions regardless of

which entity ultimately “dialed” the consumer’s phone number.12 The Petition seeks clarification on

whether the use of the combined equipment and capacities constitutes use of an ATDS within the

meaning of the TCPA and the Commission’s rules.13

Pursuant to sections 1.415 and 1.419 of the Commission’s rules,14 interested parties may file

comments and reply comments on or before the respective dates indicated on the first page of this Notice.

Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See

Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).


Electronic Filers: Comments may be filed electronically using the Internet by accessing the



Paper Filers: Parties who choose to file by paper must file an original and one copy of each



Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by

first-class or overnight U.S. Postal Service mail. All filings must be addressed to the

Commission’s Secretary, Office of the Secretary, Federal Communications Commission.


All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must

be delivered to FCC Headquarters at 445 12th Street, SW, Room TW-A325, Washington, DC

20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together

8 Id.

9 Id.

10 Id. at 5.

11 Id. at 6.

12 Id. at 4.

13 Id. at 5.

14 47 C.F.R. §§ 1.415, 1.419.



with rubber bands or fasteners. Any envelopes and boxes must be disposed of before

entering the building.


Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail)

must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.


U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th

Street, SW, Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille,

large print, electronic files, audio format), send an e-mail to or call the Consumer and

Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in

accordance with the Commission’s ex parte rules.15

Persons making ex parte presentations must file a

copy of any written presentation or a memorandum summarizing any oral presentation within two

business days after the presentation (unless a different deadline applicable to the Sunshine period applies).

Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation

must (1) list all persons attending or otherwise participating in the meeting at which the ex parte

presentation was made, and (2) summarize all data presented and arguments made during the

presentation. If the presentation consisted in whole or in part of the presentation of data or arguments

already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the

presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or

other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be

found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission

staff during ex parte meetings are deemed to be written ex parte presentations and must be filed

consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has

made available a method of electronic filing, written ex parte presentations and memoranda summarizing

oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment

filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,

searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex

parte rules.

FOR FURTHER INFORMATION CONTACT: Cynthia Bryant, Consumer and Governmental Affairs

Bureau, Federal Communications Commission, 202-418-8164, and


15 47 C.F.R. §§ 1.1200 et seq.


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