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,

In response to the COVID-19 pandemic, the FCC has been active to keep communications services available through various waivers and actions. Kelley Drye’s Communications practice group is tracking these actions and provides this overview of the key actions impacting enterprise and small business customers of communications services. For additional information on these and other FCC actions, follow Kelley Drye’s CommLaw Monitor, where we post regular updates of the latest regulatory and legislative actions impacting the communications industry.

If you have any questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on labor, advertising, and other issues, visit Kelley Drye’s COVID-19 Response Resource Center.


Continue Reading COVID-19: What Enterprise and Small Business Customers Need to Know

As COVID-19 has reached pandemic levels, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers and actions. Kelley Drye’s Communications practice group is tracking these actions and what they mean for communications service providers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business. Subscribe to receive these alerts.

If you have any questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on labor, advertising, and other issues, visit Kelley Drye’s COVID-19 Response Resource Center.


Continue Reading COVID-19: What Communications Service Providers Need to Know

In the latest episode of Full Spectrum’s Inside the TCPA series, Partner Steve Augustino and Senior Associate Brad Currier take 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

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

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

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