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 FTC and FCC have taken a number of actions to stem unlawful robocalls generally and, during the COVID-19 pandemic, to stem harmful and deceptive calls that seek to exploit the COVID-19 crisis. Even amid the backdrop of their long-standing commitment, the agencies’ most recent action stands out as an aggressive new approach to unlawful calls. On April 3, 2020, the enforcement arms of each agency jointly sent warning letters to three Voice over Internet Protocol (“VoIP”) service providers allegedly facilitating the transmission of international scam telemarketing calls originating overseas. The letters make an unprecedented demand:  block the traffic of specific allegedly unlawful actors or have all of your traffic blocked by other carriers. In this post, we’ll take a look at this new approach, and discuss its relationship to the broader provisions of the Telephone Robocall Abuse Criminal Enforcement Act (“TRACED Act”), which institutes a number of measures designed to combat illegal robocalls.

Continue Reading FCC/FTC Stake out Aggressive Robocall Position, Tell Gateway VoIP Providers to Block COVID-19 Robocalls – or Be Blocked Themselves

On December 31, 2019, the most significant anti-robocall legislation in fourteen years was signed into law. The Pallone-Thune TRACED Act increases the penalties for transmitting illegal calls under the Telephone Consumer Protection Act (“TCPA”), extends the FCC’s statute of limitations for bringing some enforcement actions and eliminates the requirement to give warnings before issuing certain

Even with the dog days of summer upon us, the FCC shows no signs of slowing down on its policymaking priorities in a jam-packed agenda for its next open meeting on August 1, 2019. Headlining the agenda is a proposal to establish a Rural Digital Opportunity Fund (“RDOF”) offering $20.4 billion over a decade to support high-speed broadband deployment to unserved areas. The RDOF would eventually replace the FCC’s Connect America Fund (“CAF”) as the agency’s primary universal service program for high-cost areas. The areas receiving RDOF support would be determined by a new agency-led information collection, requiring more granular service data from broadband providers. As with the CAF, the RDOF proceeding is sure to engender debate in the broadband industry about the appropriate performance benchmarks, auction bidding rules, and data collection mechanisms. In addition to the RDOF, the FCC also plans to adopt items at the August meeting to reform how it allocates Rural Health Care Program funding; streamline licensing procedures for small satellite systems (otherwise known as “smallsats”); establish procedures for the auction of new toll free numbers; implement 911 direct dial and location information requirements on multi-line telephone systems (“MLTS”) often found in offices, hotels, and college campuses; expand the agency’s anti-spoofing rules; and limit the franchise fees placed on cable operators.

The August agenda items impact all corners of the telecommunications industry. You will find more details on some of the most significant August meeting items after the break:


Continue Reading FCC Previews Summer Blockbuster Meeting, With USF Reform, Smallsat Licensing, and Anti-Spoofing Measures on Tap for August

[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”?

In this edition of Full Spectrum’s recurring series on FCC enforcement, Partner Steve Augustino and Associate Brad Currier highlight some of the major developments in FCC enforcement in 2018 and discuss potential next steps in the year ahead.

Part one of this episode focuses on the big picture in 2018 and the FCC’s use of

With speculation running rampant that Chairman Pai intends to bring a remand order from ACA International v. FCC in January 2019, the FCC took a related step to reduce misdirected calls.  At the December Open Meeting, the FCC approved a Second Report and Order (“R&O”) to create a single, nationwide database for reporting number reassignments that will allow callers to verify whether a phone number was permanently disconnected before calling the number. The item is meant to reduce “wrong number” calls to mobile phones, i.e., where a caller has a legitimate reason for trying to reach a consumer but doesn’t realize that the number they have has been reassigned to someone else. The new rule would help eliminate a scenario where the new holder of the number receives an unwanted call and the prior holder never receives the call intended for them. The R&O is part of a broader effort by the FCC to address and stem the volume of unwanted phone calls in the United States.

Continue Reading In a Prelude to its TCPA Ruling, the FCC Votes to Create a Database to Identify Reassigned Numbers

In the largest forfeiture ever imposed by the agency, the Federal Communications Commission (FCC) issued a $120 million fine against Adrian Abramovich and the companies he controlled for placing over 96 million “spoofed” robocalls as part of a campaign to sell third-party vacation packages.  The case has received significant attention as an example of the growing issue of spoofed robocalls, with lawmakers recently grilling Mr. Abramovich about his operations.  The item took the lead spot at the agency’s May meeting and is emblematic of the Pai FCC’s continued focus on illegal robocalls as a top enforcement priority.  While questions remain regarding the FCC’s ability to collect the unprecedented fine, there is no question that the FCC and Congress intend to take a hard look at robocalling issues this year, with significant reforms already teed up for consideration.

Continue Reading FCC Imposes Record-Setting $120 Million Fine for Spoofed Robocall Campaign