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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

Join Partner Steve Augustino and the FCBA’s Internet of Things committee for “Furthering U.S. Drone Operations: An Update on FAA and Spectrum Policy Developments,” a virtual CLE on Monday, June 15th from 3:00  – 5:10 p.m. Steve will moderate the first of two panels. His session,  “Furthering UAS Deployment in U.S. Airspace,” will provide an

In a move spurred by Twitter’s decision to fact-check a pair of President Trump’s tweets, the president recently signed a multi-pronged “Executive Order on Preventing Online Censorship” with the claimed intention of stopping online platforms from making content moderation decisions that discriminate against particular viewpoints. The President, along with other conservative political figures and commentators, have frequently claimed that social media platforms have used content moderation practices to stifle conservative speech. The Executive Order (“EO”) evokes the First Amendment, calling online platforms the 21st century “public square,” where people go to express and debate different views, and saying the allegedly biased content moderation practices undermine that free expression.

The most controversial aspects of the order are its interpretation of Section 230 of the Communications Decency Act (“CDA”)—the statutory provision that shields online service providers from liability for user-generated content and the decisions they make about how to moderate that content—and its attempt to prompt the Federal Communications Commission (“FCC”) to adopt regulations further interpreting the law. Reform of Section 230 has been under consideration in Congress for years, with Republicans and Democrats both offering different—and mostly contrary—critiques about how online platforms have failed to act in accordance with the statute while also benefitting from the liability protections.

Other directives in the EO attempt to elicit other parts of the federal government to discipline online platforms for their content moderation practices. Absent Congressional action, the EO’s directives appear to stand on shaky legal ground and are likely to have limited legal impact.  However, the issuance of the EO alone may be unlawful, at least according to a complaint challenging the constitutionality of the EO filed with the U.S. District Court in D.C. by the Center for Democracy & Technology (“CDT”). According to the complaint, the EO violates the First Amendment, which strictly limits the government’s ability to abridge speech, by retaliating against Twitter for exercising its right to comment on the President’s statements and because it “seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals” by demonstrating the government’s willingness to retaliate against those who criticize the government.


Continue Reading Section 230 Executive Order Strikes Back at Twitter, But Legal Impact Likely to be Limited

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

The FCC plans to create a new “5G Fund” offering up to $9 billion over ten years to support the deployment of wireless broadband and voice services in rural and other hard-to-serve areas. Under a Notice of Proposed Rulemaking (“NPRM”) adopted at the FCC’s April meeting, the 5G Fund would operate as the wireless counterpart to the wireline-focused Rural Digital Opportunity Fund (“RDOF”) approved earlier this year and replace Phase II of the Mobility Fund, which the FCC mothballed in 2018 after questions arose about reported coverage data. The NPRM proposes awarding funding through auction in two phases. Phase I would provide up to $8 billion in support, with $680 million reserved for deployments on Tribal lands. Phase II would provide up to $1 billion (plus any funding remaining after Phase I) for deployments for precision agriculture and particularly hard-to-serve areas like farms and ranches. The 5G Fund would exclude areas covered by the recently-approved T-Mobile/Sprint merger, which included a commitment to serve 90% of rural Americans within six years. The NPRM is just the first step towards launching the 5G Fund and presents an opportunity for all stakeholders to provide their input on the fundamental policies and procedures the will govern the new program.

Continue Reading FCC Proposes 5G Fund for Rural Wireless Networks, But Timing Remains Uncertain

The FCC has proposed new rules to eliminate several obscure telecommunications charges that were either mandated or authorized for price regulated local exchange carriers and then mirrored by many competitive telecommunications providers. At its March 2020 Open Meeting, the Commission adopted a Notice of Proposed Rulemaking (NPRM) that would eliminate the FCC’s regulation of the Subscriber Line Charge, and several other end-user access charges largely created as cost-recovery mechanism during access charge reforms in the 1990’s and early 2000’s. The NPRM also would prohibit all carriers from both listing these charges in their tariffs and breaking out these charges into separate line items on customer bills. These moves are touted by the Commission as relieving carriers of price regulation and increasing transparency for consumers.

Continue Reading FCC Initiates Rulemaking to Deregulate End-User Charges and Simplify Customer Bills

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,