Phone and gavelOne of the few things that hasn’t changed significantly since our last TCPA update is, well, the TCPA. We have a new year, a new President and multiple new COVID vaccines.  And after the December oral argument in Facebook v. Duguid before the Supreme Court, 2021 could be the year when we receive clarity on the critical TCPA question of what constitutes an automatic telephone dialing system (“ATDS”).  Indeed, the argument seemed positive for the TCPA defense bar, with Justices Alito and Thomas chafing at the anachronistic nature of the statute and Justices Sotomayor and Gorsuch expressing concerns about the idea that every cellphone user could be subject to civil liability.  But for now, the TCPA litigation landscape remains the same bizarre, often inconsistent quagmire that it always has been.  We’ll continue to be your guide through the morass, and we summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)

If you follow developments in TCPA case law, you’ve probably heard by now that the DC Circuit Court of Appeals last week overturned the 2015 FCC Order that had required TCPA opt-out notices on both solicited and unsolicited faxes. The court held that the FCC’s rule was “unlawful to the extent that it requires opt-out notices on solicited faxes.” See Bais Yaakov of Spring Valley v. FCC, et al., Case No. 14-1234 (D.C. Cir.). In fact, the DC Circuit—despite years of FCC guidance, 13 consolidated appeals and more than two dozen lawyers participating in the briefing—seemed to view this as a relatively simple issue of statutory construction: “The text of the Act provides a clear answer to the question presented in this case. . . . Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements. Unsolicited fax advertisements must include an opt-out notice. But the Act does not require (or give the FCC authority to require) opt-out notices on solicited fax advertisements. It is the Judiciary’s job to respect the line drawn by Congress, not to redraw it as we might think best.”
Continue Reading DC Circuit Opts Out of Flawed FCC Ruling

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In two federal decisions handed down on the same day (Dec. 17, 2015), federal courts in California and Georgia gave early Christmas presents to defense lawyers by granting requests to stay TCPA cases based on proceedings before the U.S. D.C. Circuit Court of Appeals and the U.S. Supreme Court.  See Fontes v. Time Warner Cable, Inc., 2015 U.S. Dist. LEXIS 169580 (C.D. Ca. Dec. 17, 2015); Luster v. Jewelers, 2015 U.S. Dist. LEXIS 169115 (N.D. Ga. Dec. 17, 2015).  These decisions highlight how TCPA cases have increasingly become simultaneous multi-front battles before district courts, courts of appeal, the Supreme Court, and the FCC and how proceedings in one or more other venues often can influence defense at the district court level (even without perfect party or claim parity among the various matters).

In Fontes, defendant Time Warner Cable argued that the ATDS and pre-recorded message putative class action should be stayed again (it had already been stayed once pending action by the FCC) because of “re-assigned number” issues addressed by the FCC in its July 10, 2015 Declaratory Ruling and Order and the subsequent appeal of that order to the D.C. Circuit.  See 2015 U.S. Dist. LEXIS 169580 at *10 (consolidated case pending as ACA Int’l, et al. v. Fed. Commncn’s Comm., No. 15-1211 (D.C. Cir. 2015)).  The court agreed and granted the stay, reasoning that “in light of the close divide amongst the FCC commissioners and the fact that at least one commissioner believes the FCC’s ruling is ‘flatly inconsistent with the TCPA,’ there is a legitimate possibility that the Court of Appeals may overturn that ruling.  Accordingly, the proper interpretation of the TCPA remains unclear.”  Id. at *12.
Continue Reading TCPA case stays related to ACA, Campbell-Ewald, and Spokeo Continue to Multiply

In the July 10, 2015 Order, the FCC considered whether to allow an exemption to the prior express consent requirement for financial and health care alerts (i.e., autodialed calls to cell phones and text messages) and, if so, under what circumstances. The FCC attempted to strike a balance between consumers’ legitimate needs for time-sensitive information against potential invasions of their privacy rights. In the end, the petitioners—the American Bankers Association (ABA), on the one hand, and the American Association of Healthcare Administrative Management (AAHAM), on the other—got some, but not all, of the relief they had requested.
Continue Reading Free-To-End User Financial and Healthcare Alerts: The FCC Applies Common Sense, With Limitations (FCC TCPA Order Report Parts 7 & 8 of 11)

If someone asked you to “call” him, what would you do? Shoot him an email? Start a chat on Facebook? Send a text message? Tweet him? Find him on LinkedIn? Chances are, even in this modern era when there are countless ways to communicate, you would still pick up the phone and make a traditional phone call. And certainly that was the case when the TCPA was passed in 1991, before text messages and social media even existed. So it seems like common sense that when the TCPA refers to a “call,” it means a traditional phone call—not a text message. FCC Commissioner Michael O’Rielly expressed this same sentiment in his dissent to the July 10, 2015 FCC Order (the “Order”): “I disagree with the premise that the TCPA applies to text messages. The TCPA was enacted in 1991—before the first text message was ever sent. The Commission should have gone back to Congress for clear guidance on the issue rather than shoehorn a broken regime on a completely different technology.” Order at p. 127.
Continue Reading The TCPA: Where a “Call” Is Much More Than a Call (FCC TCPA Order Report Part 6 of 11)

So far, our series on the July 10, 2015 FCC Order has painted a pretty bleak picture for businesses hoping to stay in compliance and limit litigation risks. But there was some good news in the FCC Order for certain businesses. Among the many petitions considered by the FCC were three focused on the rule change related to prior express written consent enacted by the FCC in 2012. The FCC’s response to those petitions was generally positive, although the relief actually granted was limited mostly to the petitioning organizations and their members. Still, in an order that is generally considered harmful to businesses, this has to be considered a small victory.
Continue Reading A Glimmer of Hope? The FCC Helps Some Companies in Its Interpretation of 2012 Rule Changes (FCC TCPA Order Report Part 5 of 11)

One of the most troubling aspects of the July 10, 2015 FCC Order interpreting the TCPA is what it has to say about consent in the context of reassigned numbers. In his dissent, Commissioner Ajit Pai says that the rule “creates a trap for law-abiding companies by giving litigious individuals a reason not to inform callers about a wrong number” and calls it a “veritable quagmire of self-contradiction and misplaced incentives.” That may be one of the best descriptions of the TCPA on record, but it doesn’t exactly help us answer the core questions here: What is the rule and, perhaps more importantly, how can businesses avoid the traps being set by plaintiffs?
Continue Reading Two Strikes and You’re Out: The FCC’s Solution to Reassigned Numbers (FCC TCPA Order Report Part 4 of 11)

The question seems simple: For purposes of the TCPA, who can be liable for making the call at issue? But with new technologies and service providers like YouMail, Glide and TextMe constantly emerging in the marketplace to make person-to-person communication more efficient and cost-effective, the answer to this question is more complicated than ever. The July 10, 2015 FCC Order provided some touchstones for this analysis, but much of the FCC’s language was tailored to the specific petitions before it, leaving open for interpretation how the Order might be applied to different technologies and factual circumstances.
Continue Reading Who Makes the Call? (FCC TCPA Order Report Part 3 of 11)

What is an “autodialer?” If my brain tells my hand to dial a number and my hand responds “automatically” by doing so, is that an autodialer? For a plaintiff’s lawyer emboldened by the FCC’s July 10, 2015 TCPA order (FCC Order), to now argue as much is not all that far-fetched.

The TCPA actually does not refer to “autodialers.” Rather, it refers to automatic telephone dialing systems (ATDS), which often are referred to more loosely as autodialers. So what is an ATDS? One would think that the TCPA itself would be the best place to look for that definition, and there is indeed a definition in the statute: “[E]quipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential-number-generator; and (2) to dial such numbers.” 47 U.S.C. § 227(a)(1).
Continue Reading Autodialer Alert! (FCC TCPA Order Report Part 2 of 11)

The hopes of businesses nationwide that the FCC would offer some relief were dashed Friday when the FCC released its final Declaratory Ruling and Order (FCC Order) in response to 21 petitions seeking assistance under the TCPA. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72, CG Docket No. 02-278, WC Docket No. 07-135, July 10, 2015. The FCC Order comprises 138 pages, addresses more than a dozen issues and includes two blistering dissents.

According to Commissioner Ajit Pai, “This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” FCC Order at p. 113. Commissioner Michael O’Reilly was similarly chagrined, saying, “The Commission’s unfathomable action today further expands the scope of the TCPA and sweeps in a variety of communications either by denying relief outright or by penalizing companies that dial a number that, unbeknownst to them, has been reassigned to someone else.” Id. at p. 127.
Continue Reading FCC Hangs Up on Businesses Calling for Help (Part 1 of an 11-Part Series)