Federal Communications Commission DA 16-1179 Before the Federal Communications Washington, D.C. 20554 Commission In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 Petitions for Waiver and/or Retroactive Waiver of 47 CFR Section 64.1200(a)(2) Regarding the Commission’s Prior Express Written Consent Requirement ) ) ) ) ) ) ) ) ) ) CG Docket No. 02-278 ORDER Adopted: October 14, 2016 Released: October 14, 2016 By the Chief, Consumer and Governmental Affairs Bureau: I. INTRODUCTION 1. In this order, we grant limited waivers of the Commission’s prior-express-written-consent rules to seven petitioners in light of confusion about the rule and consistent with the Commission’s grant of similar waivers. 1 Specifically, we find good cause exists to find that the instant petitioners needed additional time to obtain updated written consent in compliance with the Commission’s 2012 rule changes, which were adopted under the Telephone Consumer Protection Act (TCPA) 2 to ensure that 1 See Petition for Expedited Declaratory Ruling or Forbearance, CG Docket No. 02-278, filed by Mammoth Mountain Ski Area, LLC (filed Feb. 23, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001019587 (Mammoth Petition); Petition of Kale Realty, LLC for Retroactive Waiver of 47 CFR § 64.1200(a)(2), CG Docket No. 02-278 (filed July 23, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001094590 (Kale Petition); Petition of F-19 Holdings, LLC, and All Affiliated Franchisees for Retroactive Waiver of 47 U.S.C. § 227, CG Docket No. 02-278 (filed July 29, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001096041 (F-19 Holdings Petition); National Association of Broadcasters Petition for Retroactive Waiver, CG Docket No. 02-278 (filed Aug. 18, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001097932 (NAB Petition); National Cable & Telecommunications Association Petition for Waiver, CG Docket No. 02-278 (filed Oct. 1, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001301151 (NCTA Petition); Petition for Retroactive Waiver filed by Rita’s Water Ice, CG Docket No. 02-278 (filed Dec. 2, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001320950 (RWI Petition); Petition for Waiver filed by Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C., CG Docket No. 02-278 (filed on Feb. 22, 2016), http://appsint.fcc.gov/ecfs/comment/view?id=60001488035 (Papa Murphy’s Petition); see also Letter from Angela Giancarlo, counsel for Mammoth Mountain Ski Area, LLC, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 1-3 (filed Dec. 10, 2015), http://appsint.fcc.gov/ecfs/comment/view?id=60001326361 (Mammoth Ex Parte) (supplementing its petition and requesting as alternative relief that the Commission grant it the same retroactive waiver granted to certain other petitioners in the 2015 TCPA Declaratory Ruling). 2 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227. The Commission’s implementing rules are codified as 47 CFR § 64.1200. Federal Communications Commission DA 16-1179 2 telemarketers have proof of consent from consumers to make robocalls. We emphasize that these seven petitioners should already be in full compliance with the Commission’s requirements for any calls made 90 days or more after the Commission’s 2015 clarification of the written-consent rules because they had the benefit of that clarification in making such calls. II. BACKGROUND A. The Telephone Consumer Protection Act and Commission’s Rules 2. In 1991, Congress enacted the TCPA to address a growing number of telephone marketing calls and other calling practices that can be an invasion of consumer privacy. Before the Commission’s 2012 revisions, the Commission’s implementing rules, in relevant part, prohibited: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; 3 and (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. 4 The consent could be provided in either oral or written form. 5 3. In 2012, the Commission made its rules consistent with the Federal Trade Commission’s (FTC) parallel rules by requiring, among other things, prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and for all prerecorded telemarketing calls to residential lines. 6 Additionally, the Commission required that any request for a consumer’s written consent to receive telemarketing robocalls must include the telephone number to which the consumer authorizes such telemarketing messages to be delivered, and clear and conspicuous disclosures informing the consumer that: (1) the consumer authorizes the seller to deliver telemarketing calls to that number using an automatic telephone dialing system or an artificial or prerecorded voice; and (2) agrees to provide such written consent without being required, directly or indirectly, to provide written consent as a condition of purchasing any property, goods or services. 7 The 2012 rule changes became effective on October 16, 2013. 8 4. Immediately after the effective date of the 2012 rule changes, two parties, the Direct Marketing Association (DMA) and the Coalition of Mobile Engagement Providers (Coalition), filed petitions asking the Commission, respectively, to forbear from enforcing the new written consent requirements when noncompliant written consent had already been obtained and to clarify that the revised rules did not nullify noncompliant written consent (i.e., consent that did not meet the new 2012 requirements) obtained prior to the effective date of the revised rules. 9 NAB, a petitioner here, points out that in the DMA/Coalition proceeding it filed comments in support of the kind of waiver it is seeking here, “where consumers had previously provided prior express consent in writing under the old TCPA rules.” 10 NCTA, another petitioner here, also actively participated in that DMA/Coalition proceeding. 11 3 See 47 CFR § 64.1200(a)(2) (2011). 4 See 47 CFR § 64.1200(a)(1) (2011). This restriction also applied to such calls directed to emergency numbers and other specified locations. 5 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1833, para. 7 (2012) (2012 TCPA Order). 6 Id. at 1838, para. 20. 7 47 CFR § 64.1200(f)(8); see also 2012 TCPA Order, 27 FCC Rcd at 1844, para. 33. 8 See 77 Fed. Reg. 63240 (Oct. 16, 2012). 9 See 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8012-13, para. 98. 10 NAB Petition at 2 & n.8 (quoting prior NAB comments). Federal Communications Commission DA 16-1179 3 5. In its 2015 TCPA Declaratory Ruling, the Commission clarified the application of the 2012 rule change, saying that the new requirements apply “per call and … telemarketers should not rely on a consumer’s written consent obtained before the 2012 rules took effect.” 12 Addressing these petitions in the 2015 TCPA Declaratory Ruling, the Commission recognized that special circumstances warranted a deviation from strict enforcement of the revised prior-express-written-consent rules. It therefore provided the two petitioners -- and their members -- with temporary relief by granting retroactive waivers to those parties that allowed them to rely on old written consents for a limited period of time. During that time, the petitioners did not have to obtain new consent after making the required disclosures from these same consumers. 13 In reaching its decision, the Commission concluded that there was evidence in the record that petitioners could have been confused as to whether written consent obtained previously would remain valid after the new rules became effective. The Commission therefore found it reasonable to recognize a limited period of time within which the parties could be expected to obtain the prior express written consent as required by the 2012 rules, including the necessary disclosures. 14 Consequently, the Commission granted the petitioners and their members a retroactive waiver from the original effective date of the rules, October 16, 2013, to release date of the 2015 TCPA Declaratory Ruling (which was July 10, 2015), and then a waiver from the release date of the 2015 TCPA Declaratory Ruling through a period of 89 days (or until October 7, 2015), during which the affected parties were allowed to rely on the “old” prior express written consents already provided by their consumers before October 16, 2013. 15 After October 7, 2015, the petitioners and their members were required to be in full compliance with the Commission’s requirements for each subject call. 16 B. The Petitions 6. Since the release of the Commission’s 2015 TCPA Declaratory Ruling, seven additional parties have filed petitions seeking similar waivers of the 2012 rule. 17 In general, the petitioners contend they are similarly situated to the petitioners who received waivers in the 2015 TCPA Declaratory Ruling. 18 Specifically, they assert that, like the original petitioners granted relief in 2015, they faced similar confusion and needed additional time to obtain new consents under the 2012 rules without running the risk of being subject to litigation. 19 They also contend they would benefit from the added clarity provided by the earlier waiver decision and from the same additional time granted for compliance with the 2012 prior-written-consent requirements. 20 (...continued from previous page) 11 See NCTA Petition at 2. 12 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory Ruling and Order, 30 FCC Rcd 7961, 8014, para. 100 (2015) (2015 TCPA Declaratory Ruling). 13 Id. at 8014, para. 100; 47 CFR §§ 64.1200(a)(2), (f)(8); see also id. § 64.1200(a)(1)(iii); 2012 TCPA Order, 27 FCC Rcd at 1843-44, paras. 32-33; 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8012-15, paras. 98-102. 14 Id. at 8014, para. 101. 15 Id. at 8014-15, para. 102. 16 Id. 17 See supra note 1. 18 See F-19 Holdings Petition at 1-2; Kale Petition at 1, 3; Mammoth Ex Parte at 1-2, 3; NAB Petition at 3; NCTA Petition at 2; Papa Murphy’s Petition at 5-6; RWI Petition at 2, 6. 19 F-19 Holdings at 1-2, 3-4, Kale Petition at 2-3; Mammoth Ex Parte at 3; NAB Petition at 2-3; NCTA Petition at 3; Papa Murphy’s Petition at 5; RWI Petition at 4, 6. 20 F-19 Holdings Petition at 5; NCTA Petition at 3; Papa Murphy’s Petition at 6; RWI Petition at 6-7. Federal Communications Commission DA 16-1179 4 7. The Commission sought comment on the petitions. 21 Individual and corporate consumers filed comments in support of and opposition to the petitions. 22 Commenters who support the petitions urge us to grant some form of relief. 23 Some commenters specifically support waivers for the petitioners. 24 A few supporting commenters also urge us to grant broader relief, such as granting a blanket waiver to all affected parties 25 or extending a waiver to any party to the 2012 proceeding. 26 8. Opponents of the petitions generally argue that the current petitioners are not similarly situated to the initial waiver recipients because: (1) they have not established and/or cannot establish that they have received even noncompliant prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and for all prerecorded telemarketing calls to residential lines; 27 (2) they offer no evidence to demonstrate they were in fact confused by the 2012 rules; 28 (3) they seek a 21 See Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling or Forbearance from Mammoth Mountain Ski Area, LLC, CG Docket No. 02-278, Public Notice, 30 FCC Rcd 2087 (CGB 2015); Consumer and Governmental Affairs Bureau Seeks Comment on Petitions for Retroactive Waiver Filed By the National Association of Broadcasters, F-19 Holdings, LLC, and Kale Realty, LLC, CG Docket No. 02- 278, Public Notice, 30 FCC Rcd 10207 (CGB 2015); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Waiver Filed By the National Cable and Telecommunications Association, CG Docket No. 02-278, Public Notice, 30 FCC Rcd 12337 (CGB 2015); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Retroactive Waiver Filed By Rita’s Water Ice Franchise Company, LLC, CG Docket No. 02-278, Public Notice, 30 FCC Rcd 14153 (CGB 2015); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Retroactive Waiver Filed By Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C., CG Docket No. 02-278, Public Notice, 31 FCC Rcd 2118 (CGB 2016). 22 A list of commenters can be found at Appendix A. There were no comments filed on three of the petitions (F-19 Holdings, NCTA, and RWI) and only comments filed in support of the NAB Petition. There was an opposition filed by Lennartson on the Papa Murphy’s Petition and a late-filed opposition filed by Payton on the Kale Petition. There was also an ex parte filing styled as a Comment in Opposition filed on January 20, 2016 in response to the Mammoth Ex Parte. See Letter from David Zelenski, counsel for Paul Story, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278 (filed Jan. 20, 2016), http://appsint.fcc.gov/ecfs/comment/view?id=60001380421 (Story Ex Parte). We address the issues raised in the comments, oppositions, and Story Ex Parte infra. 23 See Chamber Comments on the Mammoth Petition at 1-3, 6; CCIA Comments on the Mammoth Petition at 1-2, 6; Infocision Reply Comments on the Mammoth Petition at 1, 4; NCTA Comments on the NAB Petition at 1, 3-4; JB Comments on the NAB Petition at 1, 3-4. Although the three supporting commenters on the Mammoth Petition filed their comments in support of Mammoth’s original request for a declaratory ruling, we find that their comments in favor of granting a declaratory ruling also equally support Mammoth’s request for alternate retroactive waiver relief. 24 NCTA Comments on the NAB Petition at 3-4; JB Comments on the NAB Petition at 4. 25 See, e.g., NCTA Comments on the NAB Petition at 1-3. 26 See, e.g., JB Comments on the NAB Petition at 2-3; see also NAB Petition at 3-4. Some supporting commenters also request that we find that the companies are not required to obtain new “prior express written consent” from their customers if the customer’s prior express consent was previously provided under the rules then in effect. Chamber Comments on the Mammoth Petition at 1-3, CCIA Comments on the Mammoth Petition at 6; Infocision Reply Comments on the Mammoth Petition at 1-2; NCTA Comments on the NAB Petition at 1-3; JB Comments on the NAB Petition at 2-3. The Commission has already rejected the latter relief. 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014-15, paras. 99-102. 27 Lennartson Opposition to the Papa Murphy’s Petition at 3-4; Payton Opposition to the Kale Petition at 1, 5; Shields Comments on the Mammoth Petition at 2. 28 Lennartson Opposition to the Papa Murphy’s Petition at 4-6; Story Ex Parte on the Mammoth Petition at 2-3. Additionally, in the event the Commission is inclined to entertain Papa Murphy’s request for a retroactive waiver, Lennartson requests that the Commission either stay a ruling on the request until discovery occurs in the underlying litigation or grant discovery to allow Lennartson to investigate whether Papa Murphy’s was in fact confused. Lennartson Opposition to the Papa Murphy’s Petition at 7. We address this request infra. Federal Communications Commission DA 16-1179 5 retroactive rule change which the Commission cannot grant because it may only implement a rule change on a “going-forward basis, not retroactively”; 29 (4) they seek to create a blanket exemption from the prior- express-written-consent requirements; 30 (5) they seek relief only because they have been sued for violating the TCPA; 31 and (6) they seek an extension of an extension in that they seek more time to comply after the Commission already granted parties relief by delaying implementation of its new rule until October 16, 2013. 32 9. In response to these arguments, Mammoth and Papa Murphy’s assert that they received valid prior express consent from the called parties. 33 Further, Papa Murphy’s asserts that it would not be equitable to require a detailed factual finding that it was in fact “confused” and that such a requirement would run counter to the logic of the Commission’s 2015 order. 34 In rejecting the argument it is seeking a retroactive rule change, Mammoth states that it is not seeking a retroactive rule change because it is only seeking a clarification of the meaning of the 2012 order 35 and that it should be entitled to the same waiver relief previously granted to the initial waiver recipients. 36 III. DISCUSSION 10. In this Order, we grant waivers to F-19 Holdings, LLC; Kale Realty, LLC; Mammoth Mountain Ski Area, LLC; the National Association of Broadcasters and their members; the National Cable & Telecommunications Association and their members; Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C.; and Rita’s Water Ice Franchise Company, LLC. These petitioners have demonstrated that they are similarly situated to petitioners previously granted relief in the 2015 TCPA Declaratory Ruling. Specifically, we find good cause exists to grant individual retroactive waivers of section 64.1200(a)(2) of the Commission’s rules to the extent described below. We emphasize that these waivers do not apply to calls made after October 7, 2015. Thus, after October 7, 2015, we find that each petitioner and, as relevant, its members should have been in full compliance with the Commission’s rules for each subject call or it will be subject to any factually warranted Commission enforcement and TCPA liability. We also take this opportunity to remind petitioners and other callers that the Commission previously clarified that its prior-express-written-consent requirements apply per call (not per consumer) and that telemarketers should not rely on a consumer’s written consent obtained before the current rule took effect if that consent does not satisfy the current rule. 37 11. The Commission may waive its rules for good cause shown. 38 A waiver may be granted if: (1) the waiver would better serve the public interest than would application of the rule; and (2) special circumstances warrant a deviation from the general rule. 39 Generally, the Commission or this Bureau, 29 Shields Comments on the Mammoth Petition at 1-2. 30 Shields Comments on the Mammoth Petition at 5. 31 Lennartson Opposition to the Papa Murphy’s Petition at 2, 6-7; Shields Comments on the Mammoth Petition at 1, 5; Shields Reply Comments on the Mammoth Petition at 2; see also Story Ex Parte on the Mammoth Petition at 1-2. 32 Payton Opposition to the Kale Petition at 1. 33 Mammoth Ex Parte at 2; Papa Murphy’s Reply Comments at 4. 34 Papa Murphy’s Reply Comments at 4. 35 Mammoth Reply Comments at 5-6. 36 Mammoth Ex Parte at 2-3. 37 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 100. 38 47 CFR § 1.3; WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969); appeal after remand, 459 F.2d 1203 (D.C. Cir. 1972), cert. denied, 409 U.S. 1027 (1972); Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990). 39 Northeast Cellular, 897 F.2d at 1166. Federal Communications Commission DA 16-1179 6 through properly exercised delegated authority, may grant a waiver of the Commission’s rules if the relief requested would not undermine the policy objectives of the rule in question, and would otherwise serve the public interest. 40 For the reasons discussed below, we find that the public interest is better served by granting limited retroactive waivers. Because we grant Mammoth’s alternative request for retroactive waiver relief, we do not address the merits of its other requests or the record related to those other requests. 41 In sum, we find that good cause exists to grant retroactive waivers to all seven of the petitioners on the same terms provided in the 2015 TCPA Declaratory Ruling and, as applicable, to their members. 12. The Commission previously found, in the 2015 TCPA Declaratory Ruling, that special circumstances warranted deviation from the general rule at issue. Specifically, the Commission acknowledged confusion about the 2012 written-consent rules and granted petitioners waiver relief for a limited period within which they could obtain the prior express written consent required by the 2012 rule. 42 The Commission found that language in the 2012 order could reasonably have been interpreted by the petitioners to mean that written consent obtained prior to the current rule’s effective date would remain valid even if it does not satisfy the current rule. 43 For the same reasons that the Commission cited in previously granting relief, 44 we believe it is also reasonable to recognize a limited period within which each of these petitioners could be expected to obtain the prior express written consent required by the Commission’s current rules. We find that the seven petitioners before us have adequately demonstrated that they are similarly situated to the initial waiver recipients, 45 and should receive similar limited waivers for the same period, i.e., up to October 7, 2015. 13. As some commenters observe, the Commission granted waivers to petitioners who demonstrated their confusion as to certain language in the Commission’s 2012 order. 46 Each of the petitioners cites the same language from the 2012 order that the Commission later found reasonably caused confusion, 47 and there is no evidence in the record that refutes their claimed confusion. Moreover, all seven of the petitioners reference the language in the Commission’s 2012 order that may have led to the confusion. 48 We find the seven petitioners have sufficiently demonstrated they incorrectly but reasonably interpreted the Commission’s order to mean that their old written consents would remain valid after the new rules went into effect on October 16, 2013. 49 Because we find they are similarly situated to the prior waiver recipients, we find that good cause exists to grant the seven petitioners retroactive 40 WAIT Radio v. FCC, 418 F.2d at 1157. 41 See supra note 1. 42 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 101. 43 Id. 44 Id. at 8014-15, paras. 100-102. 45 See, e.g., supra note 18. The Petitioners assert that there was industry-wide confusion after the new rule went into effect as to whether prior express consent obtained previously would remain valid and stated they needed more time to obtain those new consents under the new rule without running the risk of being subject to litigation. See supra at note 19. They also contend they would benefit from the added clarity granted by the retroactive waiver. See supra at note 20. 46 See, e.g., NCTA Comments on the NAB Petition at 2; JB Comments on the NAB Petition at 3-4. 47 See F-19 Holdings Petition at 2, 5; Kale Petition at 2; Mammoth Ex Parte at 3; NAB Petition at 2; NCTA Petition at 1, 3; Papa Murphy’s Petition at 5-6; RWI Petition at 7. 48 See F-19 Holdings Petition at 2, 5; Kale Petition at 2; Mammoth Ex Parte at 2-3; NAB Petition at 2; NCTA Petition at 1, 3; Papa Murphy’s Petition at 1, 4; RWI Petition at 3. 49 See F-19 Holdings Petition at 2, 5; Kale Petition at 2; Mammoth Ex Parte at 3; NAB Petition at 2; NCTA Petition at 1, 3; Papa Murphy’s Petition at 5-6; RWI Petition at 7. Federal Communications Commission DA 16-1179 7 waivers of Section 64.1200(a)(2) of the Commission’s rules from October 16, 2013 through October 7, 2015. 14. Of the seven petitions, four are not opposed by commenters. 50 Of the remaining three petitions (Kale, Mammoth, and Papa Murphy’s), opponents argue that the petitioners are not similarly situated to the prior waiver recipients. More specifically, opponents assert the following: petitioners have not established and/or cannot establish that they have received the prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and for all prerecorded telemarketing calls to residential lines; 51 petitioners provided no evidence to demonstrate they were in fact confused by the new rule; 52 petitioners seek a retroactive rule change which the Commission cannot grant; 53 petitioners seek to create a blanket exemption from the prior-express-written-consent requirement of the TCPA; 54 petitioners seek relief only because they have been sued for violating the TCPA; 55 and/or petitioners are seeking an unreasonable extension of time, which is in essence “an extension of an extension” in that they seek more time to comply after the Commission already granted parties relief by delaying the effective date of its new rule until October 16, 2013. 56 We address each argument in turn and find that none merit denying the requested waivers. 15. First, we find a detailed factual analysis unnecessary and not required to determine whether the petitioners had actually obtained written consent prior to seeking a waiver. 57 In the 2015 Declaratory Ruling, the Commission acknowledged evidence of apparent confusion on the part of the petitioners and, therefore, found it reasonable to recognize a limited period within which they could be expected to obtain the prior express written consent required by its recently effective rule. 58 Here, petitioners all claim that they are similarly situated, and seek the same relief. The Commission did not undertake a review of the written consent obtained earlier by waiver recipients, and we decline to do so here. Rather, for the same reasons, we find it likewise reasonable to offer them the same relief the Commission previously provided the waiver recipients. We emphasize, however, that the waivers granted here only apply to calls for which some form of written consent had previously been obtained. Nothing in the Commission’s 2015 decision suggested that parties could reasonably have been confused about the requirement that the consent in question had to be written, and the Commission was specific in that 50 As noted supra in note 22, there were no comments filed on the F-19 Holdings, NCTA, and RWI petitions and only comments filed in support of the NAB Petition. See Appendix A. 51 Lennartson Opposition to the Papa Murphy’s Petition at 3-4; Payton Opposition to the Kale Petition at 1, 5; Shields Comments on the Mammoth Petition at 2. 52 Lennartson Opposition to the Papa Murphy’s Petition at 5-6; Story Ex Parte on the Mammoth Petition at 2-3. 53 Shields Comments on the Mammoth Petition at 1; Shields Reply Comments on the Mammoth Petition at 1. 54 Shields Comments on the Mammoth Petition at 5. 55 Lennartson Opposition to the Papa Murphy’s Petition at 2, 6-7; Shields Comments on the Mammoth Petition at 1, 5; Shields Reply Comments on the Mammoth Petition at 2; see also Story Ex Parte on the Mammoth Petition at 1-2. 56 Payton Opposition to the Kale Petition at 1. 57 We also decline to conduct a factual analysis to determine the exact scope and nature of consent as requested by Lennartson, Payton and Story. See Lennartson Opposition to the Papa Murphy’s Petition at 7 (requesting discovery to allow it to determine whether Papa Murphy’s was in fact confused); Payton Opposition to the Kale Petition at 5- 6; Story Ex Parte on the Mammoth Petition at 3-4. We note that on this point Mammoth and Papa Murphy’s contend they had the required consent. See Mammoth Reply Comments at 5-6; Mammoth Ex Parte at 2-3; Papa Murphy’s Petition at 2-3; Papa Murphy’s Reply Comments at 4. 58 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 101. Federal Communications Commission DA 16-1179 8 regard. 59 We also note that the petitioners there specified that they were requesting clarification only about whether they could continue to rely on previously obtained written consent. 60 16. We also reject arguments that the Commission made proof of confusion a requirement to obtain a waiver. In addressing that argument, Papa Murphy’s asserts that it would not be equitable to require a detailed factual finding that it was in fact “confused” and that such a requirement would run counter to the logic of the Commission’s 2015 order. 61 In the 2015 Declaratory Ruling, the Commission did not require petitioners to plead specific, detailed grounds for individual confusion, 62 and we do not believe there is any basis for imposing that requirement on these parties who assert that they were similarly situated. All of the petitioners asserted their general confusion regarding the new rule, and there is no evidence in the record that petitioners there or here actually understood they were required to comply with the 2012 requirements but failed to do so. For the same reasons, we also decline to allow discovery in order for Lennartson to investigate whether Papa Murphy’s was in fact confused or to grant Lennartson a stay until discovery occurs in the underlying litigation. Papa Murphy’s has asserted its general confusion regarding the new rule. Based on the Commission’s determination that parties could reasonably have been confused as to whether previously obtained written consent would remain valid, we find Papa Murphy’s assertion sufficient. 63 On this point, in addressing Lennartson’s request for discovery, Papa Murphy’s contends that discovery would be misplaced, stating “it is unclear how discovery would help answer the question of whether the public interest would be served through granting a waiver.” 64 We agree and decline to grant the discovery request or to stay this matter until discovery occurs in the underlying litigation. We note that discovery is not contemplated by our rules governing declaratory ruling or waiver proceedings. 65 17. We also reject arguments that petitioners seek a retroactive rule change or a blanket exemption from the TCPA. Here we simply grant waivers for the same limited period of time (now expired) to a limited group of parties subject to the TCPA. The scope of the relief we grant is the same limited relief previously granted by the Commission. 66 In so doing, we deny some parties’ request that we declare a blanket retroactive waiver for some limited set of parties. 18. Specifically, petitioner NAB expressly asks the Commission to declare that all parties to the proceeding are entitled to the same retrospective and prospective waivers as articulated in the 2015 TCPA Declaratory Ruling. 67 Similarly, commenter JB requests that the Commission grant the same waiver relief granted to the 2015 waiver recipients to any other party to the proceeding, including parties who comment on the instant NAB waiver petition. 68 Seeking to extend relief to a broader category, petitioner NCTA requests that the Commission grant a blanket waiver to all entities subject to TCPA 59 See id. (We agree with Coalition that [the language from the 2012 order] could have reasonably been interpreted to mean that written consent obtained prior to the current rule’s effective date would remain valid even if it does not satisfy the current rule”) (emphasis added). 60 See id. at 8012-13, para. 98. 61 Papa Murphy’s Reply Comments at 4. 62 See generally id. at 8014-15, paras. 100-102. 63 See Papa Murphy’s Reply Comments at 3-4. 64 Id. at 3. 65 47 CFR §§ 1.2, 1.3. 66 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014-15, para. 102. 67 NAB Petition at 3-4. 68 JB Comments on the NAB Petition at 3-4. Federal Communications Commission DA 16-1179 9 obligations, 69 which it contends would provide all entities sufficient time to comply with the prior express written consent requirement and enable them to better defend claims and avoid costly litigation. 70 Rather than grant the blanket relief requested by those parties, we will address petitions for retroactive waiver of the Commission’s prior-express-written-consent rule on a case-by-case basis, as we are already doing. Should other parties request waivers for the same reason, we will address them as warranted. 19. Turning to the argument that petitioners seek relief only because they have been sued for violating the TCPA, we note that the Commission, in granting the waiver relief it provided in 2015, did acknowledge NAB’s argument at the time that granting limited prospective relief would have a bearing on such litigation. 71 But the essential basis for the relief provided under our rules was the “uncertainty” of the Commission’s 2012 language, the “confusion” resulting therefrom, and the conclusion that it was “reasonable to recognize a limited period within which [petitioners there] could be expected to obtain the prior express written consent required by our recently effective rule.” 72 Finally we reject arguments that petitioners are unreasonable in seeking a further extension of time by virtue of the instant waiver petitions. Commenters opposing the original waiver recipients’ requests also contended that no further relief was warranted, arguing at that time that the petitioners had had an ample period of time to transition—in fact, they argued they already had an extended implementation period of over 16 months that the Commission allowed for compliance with its new prior-express-written-consent requirements. 73 In granting the waiver relief requested, the Commission rejected arguments that additional time was not warranted, 74 and we also reject them now. The waivers we grant here continue only until the date specified by the Commission when it granted the earlier waivers; as such, we are allowing no additional time beyond that here. IV. ORDERING CLAUSES 20. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j) and 227 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 227, and sections 1.2, 1.3, 64.1200 of the Commission’s rules, 47 CFR §§ 1.2, 1.3, 64.1200, and pursuant to the authority delegated in sections 0.141 and 0.361 of the Commission’s rules, 47 CFR §§ 0.141, 0.361, that the Petition for Expedited Declaratory Ruling or Forbearance, filed and supplemented by Mammoth Mountain Ski Area, LLC in CG Docket No. 02-278 on February 23, 2015 and December 10, 2016 respectively, the Petition for Retroactive Waiver filed by Kale Realty, LLC in CG Docket No. 02-278 on July 23, 2015, the Petition for Retroactive Waiver of 47 U.S.C. Section 227 filed by F-19 Holdings, LLC and all Affiliated Franchisees in CG Docket No. 02-278 on July 29, 2015, the Petition for Retroactive Waiver filed by the National Association of Broadcasters and their members in CG Docket No. 02-278 on August 18, 2015, the Petition for Waiver filed by the National Cable & Telecommunications Association and their members in CG Docket No. 02-278 on October 1, 2015, the Petition for Retroactive Waiver filed by Rita’s Water Ice Franchise Company, LLC in CG Docket No. 02-278 on October 1, 2015, and the Petition for Waiver filed by Papa Murphy’s Holdings Inc. and Papa Murphy’s International L.L.C. in CG Docket No. 02-278 on February 22, 2016, ARE GRANTED IN PART AND OTHERWISE DENIED to the extent indicated herein. 21. IT IS FURTHER ORDERED that this ORDER shall be effective upon release. 69 NCTA Petition at 1; see also NCTA Comments on the NAB Petition at 3. 70 NCTA Petition at 1, 4; NCTA Comments on the NAB Petition at 3-4. 71 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 102. 72 Id. at 8014, paras. 100-01. 73 Id. at 8014, para. 99. 74 Id. at 8014-15, para. 102. Federal Communications Commission DA 16-1179 10 FEDERAL COMMUNICATIONS COMMISSION Alison Kutler Chief Consumer and Governmental Affairs Bureau Federal Communications Commission DA 16-1179 11 Appendix A List of Commenters The following parties filed comments in response to the various Public Notices issued in this matter (CG Docket 02-278): Commenter Petition Abbreviation Computer & Communications Industry Association Mammoth CCIA Infocision Management Corporation Mammoth Infocision Joe Shields* Mammoth Shields John Lennartson Papa Murphy’s Lennartson Joint Broadcasters NAB JB Mammoth Mountain Ski Area, LLC Mammoth Mammoth National Cable & Telecommunications Association NAB NCTA Papa Murphy’s Holdings, Inc. and Papa Murphy’s Papa Murphy’s Papa Murphy’s International LLC Rusty Payton** Kale Payton U.S. Chamber of Commerce and the U.S. Chamber Institute for Legal Reform Mammoth Chamber * filing both comments and reply comment (bold - reply comments only). **filing late-filed opposition.