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As we reach the peak of this year’s Spooky Season, we thought it would be helpful to revisit some of the scariest recent developments in the realm of TCPA litigation and compliance.  The conventional wisdom is that some of the new rules and regulations coming into play around the TCPA are going to lead to even more litigation under the statute.  But at the same time, the Supreme Court’s ruling earlier this year in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), has called into question much of what we thought we knew about administrative law, leading to ambiguity and uncertainty surrounding the TCPA and many other statutes. 

One-to-One Consent Rule

We’re now just under three months away from the January 27, 2025 effective date of the FCC’s one-to-one consent rule.  Formally adopted in December 2023, the rule requires that prior express written consent be obtained separately for each company seeking to use such consent.  This raises significant concerns about a company’s ability to communicate with not only third-party leads but also many first-party leads, if consent is not adequate under the new rule. 

The TCPA has long required prior express written consent for calls and texts that contain an artificial or prerecorded voice or are sent using an “automatic telephone dialing system.”  But the new rule states, in relevant part, that:Continue Reading TCPA Turnstile: Four Scariest Developments (and a Potential Ray of Light Amid the Fright) (TCPA Update Vol. 19)

Just over halfway through 2023, nationwide TCPA jurisprudence is focused on further delineating the scope of the TCPA. As the dust settles from earlier battles over defining ATDS requirements, the cases from this year are largely aimed at establishing who can bring a claim under the TCPA and what conduct the statute covers. We summarize here developments since our last update, listed in alphabetical order by topic area.Continue Reading TCPA Turnstile: Scoping out the TCPA – 2023 Midyear Update (TCPA Case Update Vol. 18)

As 2022 comes to a close, we wanted to look back at the most significant Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) decisions of the year.  While we didn’t see the types of landscape-altering decisions that we saw in 2021, there’s still plenty to take note of.  We summarize here the biggest developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: 2022 Year in Review (TCPA Case Update Vol. 17)

Phone and gavelThanks to the Supreme Court’s decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021), 2021 will go down as one of the most significant years in the history of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).  And while the second half of 2021 did not produce the fireworks that we saw earlier in the year, there are still some cases worthy of note as we enter the new year.  We summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: 2021 came in like a lion, and went out more like a lamb for TCPA law (TCPA Case Update Vol. 16)

Phone and gavelThe first half of 2021 saw one of the most significant TCPA rulings in many years as Facebook v. Duguid, 141 S. Ct. 1163 (2021), appeared to settle the long-debated question of what constitutes an automatic telephone dialing system (“ATDS”).  But while the Supreme Court’s April ruling was extremely positive for the TCPA defense bar, it by no means brought an end to TCPA claims.  Significant cases have continued to yield decisions, including cases that have sought to interpret Facebook.  And the state of Florida stepped into the abyss in passing a “mini-TCPA” statute that went into effect earlier this month that regulates telemarketing at the state level, with a much broader definition of the relevant technology.  Thus, the TCPA (and related statute) litigation landscape, while upended to some degree, remains unsettled, and we’ll continue to provide our insights.  We summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: TCPA cases in a post-Facebook world (TCPA Case Update Vol. 15)

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)

Phone and gavelMany had hoped that the summer of 2020 might bring the end of the TCPA as we know it, by way of the Supreme Court’s decision in Barr v. American Association of Political Consultants.  Of course, that’s not how things played out. The government-backed debt exception is dead, but the rest of the TCPA is still very much alive.  And while the pace of litigation has slowed because of the ongoing COVID-19 pandemic, TCPA decisions continue to roll in and there have been new developments before the FCC.  We reviewed the TCPA cases published and other developments since our last update and compiled the most noteworthy items, listed below by issue category in alphabetical order.
Continue Reading TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)

Phone and gavelUndoubtedly, the biggest TCPA development in the last month was the recent Supreme Court oral argument in Barr v. American Association of Political Consultants Inc., Case No. 19-631, which has the potential to upend TCPA jurisprudence as we know it.  While we wait for a Supreme Court decision, the oral argument made a few things clear:
Continue Reading TCPA Turnstile: As we wait for a ruling in Barr, new case law abounds (TCPA Case Update Vol. 12)

Phone and gavelWe’re a quarter of the way through 2020 — even if March may have seemed liked several years unto itself — and it is shaping up to be another big year for TCPA litigation.  We’ve gone through the dozens of TCPA decisions published this year and identified the five most notable cases and storylines that we will be following closely for the rest of 2020.
Continue Reading Five Key TCPA cases to Know as We Enter the Second Quarter of 2020 (TCPA Case Update Vol. 11)

Phone and gavelPerhaps not surprisingly, there was no vacation this summer for TCPA litigation.  We already addressed the 11th Circuit’s big decision on Article III standing in Salcedo.  But we’ve also combed through the 150+ TCPA-related decisions over the summer to keep you apprised of the latest developments in this area of the law.  We’ve compiled the most noteworthy decisions since our last report, and they’re listed below by issue category in alphabetical order.
Continue Reading TCPA Turnstile: Case Update Vol. 10