On April 1, 2021, in a unanimous decision, the Supreme Court ruled that the definition of an automatic telephone dialing system (“ATDS”) under the TCPA is limited by the plain grammar of the statute itself. The Court, in a decision authored by Justice Sotomayor, held that a device must have the capacity to use a random or sequential number generator in either storing or producing a telephone number, to qualify as an ATDS under the TCPA. Facebook, Inc. v. Duguid et al., Case No. 19-511 (2021).

Our preview of the Supreme Court’s consideration of Duguid can be found here and our analysis of the oral argument can be found here. The Court’s decision is discussed below, and its opinion can be found here.

Continue Reading Supreme Court Defines ATDS Under The TCPA

In episode 9 of Kelley Drye Full Spectrum’s “Inside the TCPA” series, we provide an update on the new FCC requirement for voice service providers to develop and implement robocall mitigation programs. Building on their Episode 7 discussion of the STIR/SHAKEN framework, the episode discusses when providers need to implement mitigation programs and what needs to be included. They also offer recommendations for customizing a program to fit a provider’s needs and how to build a program that is both effective and manageable.

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For the second time this year, the TCPA came before the Supreme Court via teleconference oral argument in Facebook, Inc. v. Duguid, et al, Case No. 19-511 (2020). The Supreme Court’s disposition of Facebook’s petition is expected to resolve a widening Circuit split over what qualifies as an automatic telephone dialing system (“ATDS”) under the TCPA, 47 U.S.C. § 227, et seq., and thus determine much of the scope of the TCPA’s calling restrictions.

Continue Reading Supreme Court Hears Oral Argument Over the TCPA’s Definition of an Autodialer

It has been more than two years since the D.C. Circuit found the Federal Communications Commission’s (the “FCC”) discussion of predictive dialers and other equipment alleged to be an automatic telephone dialing system (“ATDS,” or “autodialer”) to “offer no meaningful guidance” on the question. In the absence of an FCC ruling on the remand, multiple courts of appeals have addressed the statute’s definition. In the most recent case, Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit adopted (in a split decision) a broad definition of an autodialer. Construing the term ATDS to include both devices that “generate[] and dial[] random or sequential numbers,” and “that dial from a stored list of numbers,” the Sixth Circuit has aligned itself with the Second and Ninth Circuits in a growing circuit split, with the Third, Seventh and Eleventh Circuits adopting a narrower interpretation. At this point, all eyes are on the Supreme Court, which accepted a case addressing the ATDS definition for next term.¹ The FCC, meanwhile, is not likely to address the core ATDS definition until after the Supreme Court ruling.

Continue Reading Sixth Circuit Holds That Stored-Number Systems Meet the TCPA’s Definition of an Autodialer, Deepening Circuit Split to be Addressed by the Supreme Court Next Term

On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers. The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent. Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns. Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision. While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed. Now the Supreme Court is poised (potentially) to resolve that dispute.

Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA

On July 6, 2020, in a 7-2 decision, the Supreme Court upheld the constitutionality of the TCPA, but severed as unconstitutional the government debt exception. William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020). Our preview of the Supreme Court’s consideration of the Barr case can be found here and our summary of the oral argument can be found here.

Continue Reading Supreme Court Upholds Constitutionality of the TCPA

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the core questions regarding the definition of an autodialer and consent requirements that were remanded two years ago in ACA International v. FCC, they may signal an effort to clean up TCPA issues in what is expected to be the waning months of FCC Chairman Pai’s tenure at the Commission.

In the first ruling, P2P Alliance, the Bureau ruled that an automatic telephone dialing system (“ATDS”) is not determined by whether the equipment has the capability to send a large volume of calls or texts in a short period of time. Instead, the Bureau, while recognizing that the Commission’s interpretation of the ATDS definition remains pending, ruled that “whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.” The Bureau also provides an illuminating discussion of the so-called “human intervention” element of prior FCC statements regarding autodialers.

In the second ruling, Anthem, Inc., the Bureau denied a petition to exempt certain healthcare-related calls from the TCPA’s consent requirements. In this order, the Bureau breaks less new ground and instead reiterates that prior express consent must be obtained before a call (or text) is made and that the supposed value or “urgency” of the communication does not necessarily make it permissible.

Besides these two petitions, the Commission has nearly three dozen petitions pending before it on a variety of matters relating to exemptions from the TCPA’s consent requirements, the collection and revocation of consent, the “junk fax” provisions, and other questions raised by the flood of TCPA class action litigation in the last five years. If the FCC begins addressing these other pending petitions, the course of TCPA class action litigation could change significantly.

Continue Reading Beginning of a TCPA Clean-Up? FCC Sets Another Robocall Blocking Item for Vote While Addressing Two of Nearly Three Dozen Pending Petitions

On Wednesday, May 6th, the U.S. Supreme Court will hear oral argument in a case concerning the scope of the Telephone Consumer Protection Act (“TCPA”) that is of great interest to businesses and communications industry practitioners. In William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020) (“Barr”) the Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the 1991 TCPA. The 2015 amendment exempts calls from the TCPA’s autodialer restriction, if the call relates to the collection of debts guaranteed by the U.S. government. On Wednesday, the Supreme Court will consider if: 1) the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment; and 2) whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

TCPA litigation has largely focused on the autodialer restriction over the past decade. In 2015, the Federal Communications Commission (“FCC”) adopted an expansive interpretation of the restriction, which the U.S. Court of Appeals vacated and remanded in 2018. While the industry has waited for the FCC to offer further guidance, entities making calls and sending texts have navigated an environment plagued by uncertainty. Several courts of appeals have adopted conflicting interpretations of the autodialer provision. Meanwhile, the FCC could offer its interpretation at any time, throwing the issue into further litigation in all probability.  In this environment, the Supreme Court agreed to hear the constitutionality of one TCPA exemption in the Barr case. Many are hoping for a decision that goes beyond the 2015 amendment and offers definitive guidance on the autodialer provision’s scope. This post discusses what to expect – and what to watch for – in the Supreme Court’s oral argument this week.

Continue Reading TCPA In Jeopardy? US Supreme Court Reviews Constitutionality

The FCBA Privacy and Data Security Committee will present a virtual CLE on Tuesday, April 21 from 3:00 – 5:20 p.m. entitled “Dealing with Robocalls: The Continued Battle Against Robocalls and Unfinished Business with the TCPA.” Join Kelley Drye Partner Steve Augustino and other industry experts as they discuss the TRACED Act, FCC robocall proceedings, SHAKEN/STIR deployment, and TCPA interpretation issues. Steve’s panel will examine the range of TCPA issues the FCC is considering or implementing, and where they might leave legitimate businesses and other callers seeking clarity and reasonable safe harbors.

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The latest episode of Full Spectrum’s Inside the TCPA series takes a closer look at shifting strategies to provide effective enforcement of TCPA violations. Unlike TCPA actions of the past, which focused primarily on the entity that is placing the call, these new TCPA actions rely upon new approaches to enforcement, involving both new targets and new enforcers. We discuss how the government (importantly, not just the FCC) is looking “up the chain” in enforcement matters to target service providers who allegedly assist unlawful robocalling and spoofing practices. The theories used are different and involve varying degrees of allegedly culpable conduct, but the significance is in WHO the government is targeting, and HOW the government is seeking to modify behavior. If this approach continues, service providers may face new risks and may need new compliance strategies.

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