“Yes FCC, we meet again old friends” was the message comedian John Oliver had for the FCC on his show Last Week Tonight, when he devoted nearly 20 minutes to an in-depth criticism of “robocalls” and the FCC’s approach to regulating such calls. (Oliver had previously taken aim at the FCC in multiple segments about net neutrality – which included comparing then-FCC Chairman Tom Wheeler to a dingo – and he allegedly crashed the FCC’s comment system after encouraging his viewers to submit pro-net neutrality comments in the proceeding that led to the decision to revert back to light-touch regulation of broadband Internet access service.) He ended the March 10th segment by announcing that he was going to “autodial” each FCC Commissioner every 90 minutes with a satirical pre-recorded message urging them to take action to stop robocalls.

The irony of John Oliver making robocalls in order to protest robocalls is rather funny. But, it raises the question – are these calls legal? The fact that the calls appear to be lawful – and would be legal regardless of the action Oliver called for in the program – highlights that there is an important distinction between illegal calls and unwanted calls. In the end, Oliver’s segment demonstrates some of the problems with modern efforts to apply the Telephone Consumer Protection Act (“TCPA”), a statute that was adopted well before the proliferation of cell phones in America, and seems to deter many legitimate calls while not sufficiently stopping scam calls.

Continue Reading John Oliver Robocalls the FCC: Is it Legal?

[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”?

On May 14, 2018, the FCC issued a Public Notice seeking comment on a number of issues regarding the proper interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent decision by the D.C. Circuit Court of Appeals to overturn most of the FCC’s 2015 Omnibus TCPA Declaratory Ruling.  Given Chairman Pai’s strong dissent from the 2015 Declaratory Ruling and his statement praising the D.C. Circuit’s findings regarding it, this comment cycle presents a valuable opportunity for parties who have been adversely affected by the uncertainty surrounding the TCPA in certain years to provide input to the FCC on how it should interpret the statute to best serve its intended purpose.

Continue Reading FCC Turns to ATDS, Other TCPA Issues Following D.C. Circuit Decision

With class action cases proliferating, the Federal Communications Commission (“FCC”) continues to receive petitions seeking guidance on the applicability of its rules to various calling or texting scenarios. In the latest example, the FCC issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed by TextMe, Inc. (“TextMe”). TextMe provides a free mobile telephone app that allows users to send and receive text messages to or from personal contacts in the US, and to receive free texts and voice calls from other TextMe users. The TextMe app also allows users to make voice calls, although users do not need to purchase an outbound calling functionality to do so. In addition, a currently disabled function allows TextMe users to invite friends to use the app by sharing a message about TextMe through third-party social networks, by email, and by text message.

In its petition, TextMe requests that the Commission: (1) clarify the meaning of the term “capacity” as used in the TCPA’s definition of “automatic telephone dialing system” (“ATDS”) and (2) clarify that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA. Alternatively, TextMe requests that the Commission clarify that third-party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.

This petition marks the latest effort from entities seeking clarification on the definition of an ATDS. And while the Commission has begun to address some of the nearly two dozen TCPA petitions remaining on its docket, it has yet to resolve many critical questions that could provide much needed clarity for telemarketers and class action plaintiffs alike. One such question is the applicability of the TCPA to text messaging. FCC Commissioner Michael O’Rielly recently expressed hesitation in applying the TCPA to text messaging, since Congress enacted the TCPA before the first text message was ever sent. The TextMe case provides the Commission with an opportunity to consider the issue anew, so interested parties may consider addressing it in their comments.

Comments are due May 7, 2014, while replies are due May 22, 2014.

On Friday, June 19, 2009, the Ninth Circuit Court of Appeals reversed a district court decision involving a mobile marketing campaign. A key issue in the case is whether text messages are subject to the Telephone Consumer Protection Act (the "TCPA"), a law that was drafted before the advent of text messaging. Although the Ninth Circuit remanded the case so that the district court could develop more facts, the decision underscores the importance of ensuring that marketers get express consent before sending text messages to consumers. 

Background on the Case

Laci Satterfield became a registered user of Nextones in order to receive a free ring tone. During the registration process, Ms. Satterfield checked a box which read, in part: "I would like to receive promotions from Nextones affiliates and brands." On January 18, 2006, Ms. Satterfield received a text message from Simon & Schuster advertising a novel by Stephen King. Shortly thereafter, Ms. Satterfield filed a class action lawsuit alleging that Simon & Schuster’s text message campaign violated the TCPA.

In June 2007, the Federal Court for the Northern District of California granted summary judgment to Simon & Schuster holding that the company did not violate the TCPA. Specifically, the court determined that the text message campaign did not violate the TCPA’s prohibition against using an automatic telephone dialing system (an "ATDS") because the device used to send the messages did not fall within the statutory definition of an ATDS. Moreover, the court found that Ms. Satterfield had agreed to receive text messages when she registered for Nextones.

Ninth Circuit Opinion

On Friday, June 19, 2009, the Ninth Circuit Court of Appeals reversed the district court decision and remanded the case for further proceedings. The Ninth Circuit held that the district court had erred because (1) the text message was a "call" within the meaning of the TCPA, (2) there was a disputed issue of material fact as to whether the system Simon & Schuster used was an ATDS, and that (3) Ms. Satterfield did not consent to receive messages from Simon & Schuster because Simon & Schuster is not an affiliate or brand of Nextones.

The TCPA applies to certain types of "calls." Simon & Schuster had argued that the sending of text messages did not constitute a "call" under the TCPA. Although the district court did not rule on that point, the Ninth Circuit disagreed with Simon & Schuster’s argument. The term "call" is not defined by the TCPA. However, the Federal Communications Commission has noted that the statute

Continue Reading U.S. Court of Appeals Applies Telephone Solicitation Restrictions to Text Messaging