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)

Through its latest declaratory rulings on Friday, the FCC shunned an opportunity to rein in the damage that has been done to U.S. businesses over the past several years by the TCPA plaintiffs’ bar, choosing instead by a 3-2 vote to expand the scope of the TCPA beyond its statutory meaning. The FCC’s rulings create a dangerous landscape for not just telemarketers, but any companies that do business over the phone. TCPA litigation has dramatically spiked in recent years (at least 2,000 TCPA cases were filed in 2014 alone), and the FCC’s latest action will do nothing to stem the tide—as FCC Commissioner Ajit Pai wrote in a recent editorial for The Daily Caller, “Almost every call between a business and its customers will become a potential TCPA violation.” That sound you hear is the TCPA plaintiffs’ bar exchanging high fives.
Continue Reading FCC’s Latest TCPA Ruling Opens the Floodgates Even Wider

The U.S. Supreme Court today granted certiorari to an advertising partner of the U.S. Navy in a case involving “mooting” and the Telephone Consumer Protection Act (TCPA).  See Campbell-Ewald Company v. Gomez, 14-857. As we indicated in a previous Media Privacy and Risk Report post, this appeal could resolve a circuit split on whether, and so, under what circumstances, a putative class action defendant may offer full and complete relief to a class representative and eliminate the case or controversy as to that individual plaintiff.
Continue Reading U.S. Supreme Court Grants Certiorari in TCPA “Mooting” Appeal

As we have written about in this space before, the ultimate result of the circuit split on the issue commonly known as “mooting” will be critical to the future of class actions under statutes such as the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In Genesis Healthcare v. Symczyk, 133 S. Ct. 1523 (2013), the Supreme Court gave a glimpse of how it could rule on this issue, holding that “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Id. at 1528. But some lower courts (relying in part on Justice Kagan’s dissent) have held that this standard does not necessarily apply in the class action context because the Genesis case was a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216, not a class action under Rule 23. Setting aside whether this is a meaningful distinction—we have argued in various courts that it is not—it appears the Supreme Court will have an opportunity this term to directly address the issue of mooting in the class action context.
Continue Reading Will Supreme Court Address “Mooting” in Gomez v. Campbell-Ewald?

In yet another victory for advocates of what is colloquially referred to as “mooting,” U.S. District Judge Sandra J. Feuerstein recently rejected the arguments of TCPA plaintiffs’ lawyers Aytan Bellin (based in New York), Brian Wanca (based in Illinois) and Max Margulis (based in Missouri) and dismissed a TCPA putative class action because the putative class representative had been offered full and complete relief and thus no longer had Article III standing under the U.S. Constitution. See Lary v. Rexall Sundown, Inc., 2015 U.S. Dist. LEXIS 16733 (E.D.N.Y. Feb. 10, 2015).   According to Judge Feuerstein:

This Court finds that the question is one which should be resolved in favor of defendants unless and until Congress provides legislation to clearly state a procedure which (a) denies the defendants the opportunity to make a Rule 68 offer for a stated period; or (b) requires plaintiffs to move for class certification within a specified period. Based upon the foregoing and the fact that plaintiff’s motion for class certification has not been determined, CCG’s pre-certification offer, which provides all the relief plaintiff could recover, moots plaintiff’s claim.

Id. at *40.

Continue Reading Mooting Victories Pile Up—TCPA Dismissal in E.D.N.Y.