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

With the COVID-19 economic disruptions and Chairman Pai’s Keep Americans Connected Pledge, planning for the possibility of telecom customers filing for bankruptcy takes on increased importance. In this episode of Kelley Drye’s Full Spectrum podcast, we provide an overview of the bankruptcy process and the rights and responsibilities of communications service providers when

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

Nearly two years ago, in ACA International v. FCC, the DC Circuit reversed the FCC’s 2015 order interpreting the term “automatic telephone dialing system” (ATDS) in the Telephone Consumer Protection Act (TCPA) and remanded that interpretation for further consideration.  Since that time, callers, call recipients, practitioners and litigants have all been awaiting the

After a long road that included questions over the scope of FTC and FCC jurisdiction, AT&T finally settled one of two cases challenging the unlimited data plans it offered to consumers.   On Tuesday, November 5, 2019 the Federal Trade Commission (“FTC”) moved to settle its October 28, 2014 complaint against AT&T Mobility, LLC (“AT&T” or “Company”) in which the FTC asserted that the Company was reducing the data speeds of customers grandfathered into unlimited plans after they had used a certain amount of data. The stipulated order, approved 4-0 by the FTC and awaiting final approval from the United States District Court for the Northern District of California, will require AT&T to dole out $60 million to eligible customers and prohibit the Company from portraying the amount or speed of mobile data in its plans, including unlimited, without disclosing any material restrictions accompanying such plans.

As we covered extensively in several previous blog posts, one of the primary consequences of the case were questions about the limits of the FTC’s jurisdiction. The case mirrored a time when the Federal Communications Commission (“FCC”) took opposing positions in successive administrations regarding whether mobile data services and other Broadband Internet Access Services (“BIAS”) were subject to FCC regulation. One of the central questions underlying the case was which agency, the FCC or the FTC, could regulate AT&T’s mobile data practices. After the FTC won a Ninth Circuit decision that its jurisdiction reaches to non-common carrier activities of common carriers (and the FCC concluded that mobile BIAS was not a common carrier service), AT&T agreed to settle the FTC case. However, so long as the jurisdiction of particular services remains in doubt, or is subject to changing FCC positions, service providers will face potential overlapping enforcement activities by the two agencies.


Continue Reading AT&T To Pay $60M to Settle 2014 FTC Data Throttling Complaint

Since its adoption, the Telephone Consumer Protection Act (“TCPA”) has periodically been attacked as unconstitutional on grounds that it violates the First Amendment right to free speech due to its content-based restrictions. Until today, those attacks have generally failed, leaving defendants with the threat of potentially crippling statutory damages. Today, the Fourth Circuit announced that part of the TCPA, an exemption for calls to collect government debts, is unconstitutional and will be stricken from the Act.

Continue Reading 4th Circuit Declares Government Debt Exemption to the TCPA Unconstitutional, But Leaves the Rest of the Statute Intact

Back for its 10th year, our most popular webinar offers an in-depth discussion on the federal Universal Service Fund for participants in USF programs and for contributors to the Fund. This webinar will address major developments in the four support funds and discuss the pressures on the USF contribution system in an era of 20% contribution rates. In addition, as usual, we will offer tips and insights into managing audits and investigations in these highly scrutinized programs.

Continue Reading Register for the 10th Annual USF Update Webinar on March 6th

[Spencer Elg co-wrote this post]

The current and future definition of what qualifies as an automatic telephone dialing system (“ATDS” or “autodialer”) remains a hotly debated and evaluated issue for every company placing calls and texts, or designing dialer technology, as well as the litigants and jurists already mired in litigation under the Telephone Consumer Protection Act (“TCPA”). Last year, the D.C. Circuit struck down the FCC’s ATDS definition in ACA International v. FCC, Case No. 15-1211 (D.C. Cir. 2018). Courts since have diverged in approaches on interpreting the ATDS term.  See, e.g., prior discussions of Marks and Dominguez. All eyes thus remain fixed on the FCC for clarification.

In this post, we revisit the relevant details of the Court’s decision in ACA International, and prior statements of FCC Chairman Ajit Pai concerning the ATDS definition to assess how history may be a guide to how the FCC approaches this issue.


Continue Reading Taking Stock of the TCPA in 2019: What is an “Autodialer”?