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

A new report from the Wall Street Journal on FCC robocall enforcement set off a minor scrum over the effectiveness of the FCC’s TCPA efforts under Chairman Pai. The report claimed that, despite recent eye-popping enforcement actions and policy proposals aimed at curbing unwanted calls, the FCC collected only a fraction of those fines so far. Out of $208.4 million in fines issued since 2015 for violations of the FCC’s robocalling and associated telemarketing rules, the agency collected just $6,790, or less than one-hundredth of one percent. None of the over $200 million in robocall-related fines imposed under Chairman Pai’s leadership have been collected to date, including the record-setting $120 million penalty issued last year against a robocalling platform and its owner for placing over 96 million “spoofed” marketing robocalls.

This report prompted commentary from Commissioner Rosenworcel, who tweeted that these “measly efforts” were “not making a dent in this problem” and called for carriers to provide free call blocking tools to consumers. In our view, however, the report really doesn’t relate to the vigor – or alleged lack thereof – of FCC robocall enforcement efforts. Instead, the small amount of assessed fines that are actually collected starkly demonstrates the internal and external hurdles faced by the FCC, which impact all types of enforcement actions, not just robocalls. The report likely will rekindle Congressional criticism of FCC enforcement processes and calls for more systematic solutions to the problem of unwanted calls.


Continue Reading Battle Over Collection of Robocall Fines Illustrates Broader Enforcement Issues, Not a Lack of Willpower on TCPA

“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?

On March 31, 2017, the United States Court of Appeals for the District of Columbia issued a decision in Bais Yaakov of Spring Valley et.al. vs. FCC (No. 14-1234), holding that the FCC’s 2006 Solicited Fax Rule is unlawful to the extent that it requires opt-out notices on faxes sent with the recipient’s consent (i.e., “solicited” faxes).  The decision also vacated the FCC’s October 30, 2014 Fax Advertisement Waiver Order insofar as it attempted to enforce the rule and grant retroactive waivers to certain parties of the opt-out notice requirement.  This decision is a big win for defendants in a recent wave of class action cases based on a failure to include opt-out notices on solicited faxes.  These defendants – nearly 150 of whom had received retroactive waivers from the FCC – now will not face liability for faxes sent with the recipient’s permission.

Continue Reading D.C. Circuit Limits FCC Jurisdiction on Fax Advertisements

On January 13, 2017, the Federal Trade Commission (FTC) announced that it filed two lawsuits against more than a dozen individual and corporate defendants allegedly coordinated by two individuals.  In the complaints, the FTC alleges multiple violations of the FTC’s Telemarketing Sales Rule (TSR).  Specifically, the complaints allege that over a period several years, the defendants made unauthorized prerecorded calls using auto-dialer software to consumers throughout the U.S. in an attempt to sell or generate leads for goods or services such as extended auto warranties, search engine optimization services, and home security systems.  The FTC contends that these actions violated the TSR’s prohibition against abusive telemarketing acts or practices and initiating or causing the initiation of unlawful prerecorded messages.  The complaints further claim that many of these calls were made to phone numbers on the national Do Not Call Registry, which is a separate TSR violation.

Continue Reading FTC Announces Two Telemarketing Cases

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On June 18,  the FCC approved a major TCPA Declaratory Ruling that redefines what equipment falls within the definition of an “autodialer,” specifies liability for calls to reassigned telephone numbers, provides consumers with a right to revoke consent by any reasonable means, and establishes new exceptions for financial and healthcare related calls, among other changes. With the order’s release on Friday, July 10, industry participants can finally begin to evaluate the implications of the FCC’s rulings on their ability to text or call customers and potential customers.  Please join us for a webinar to discuss the FCC’s Declaratory Ruling and Order on Friday, July 17 at 12 PM ET.  Kelley Drye’s TCPA Practice and Government Affairs attorneys will discuss the rulings, the prospects for appeals, and potential legislative responses to the FCC action.

To register for the discussion, please click here.  CLE credit is available for NY and CA bar members.

Continue Reading Webinar: The TCPA Thicket: Making Sense of the FCC’s Latest Ruling

On December 17, 2014, the FCC’s Consumer and Governmental Affairs Bureau (“CGB”) released an order extending the deadline to January 23, 2015 for interested parties to file comments in response to a request from the National Association of Attorneys General (“NAAG”) for a formal opinion regarding the legality of certain call-blocking technologies. The extension was granted pursuant to a request from the United States Telecom Association (“USTelecom”), a party that is keenly interested in the outcome of this proceeding because NAAG’s request for the opinion was based largely on statements made by USTelecom representatives regarding the FCC’s position on call-blocking technology.
Continue Reading FCC Extends Deadline for Call-Blocking Technology Comments

The FCC’s docket dedicated to resolving issues related to the Telephone Consumer Protection Act (“TCPA”) has been very active as of late.  Sometimes, it takes a while for the Commission to react to a filing made before it.  One recent example is the Public Notice released by the Consumer and Governmental Affairs Bureau on November 24, 2014.  The Public Notice seeks comment on a letter received back in September 2014 from 39 state attorneys general asking for the Commission’s opinion about the legality of call-blocking technology.  The inquiry raises several interesting questions for the future of TCPA enforcement.
Continue Reading FCC Seeks Input on State Attorneys General’s Call-Blocking Technology Inquiry

On October 30, 2014, the FCC released an order that effectively resolves nearly half of the Telephone Consumer Protection Act (“TCPA”) petitions pending before it. This order addresses 24 petitions seeking clarification of the Commission’s rules requiring individuals and entities that send fax advertisements to include certain information on the fax to allow recipients to “opt-out” of receiving such transmissions in the future. The FCC denied all of the petitions insofar as they requested the FCC to rule that the “opt out” language requirement did not apply to faxes sent with the prior express consent of the recipient, but granted a retroactive waiver to the petitioners and other similarly situated parties because the scope of the opt-out requirement was previously unclear. The order thus will address a key issue in many pending TCPA class action cases. Moreover, by permitting similarly situated parties to seek the same waiver, the FCC essentially sets the stage to remove this issue from all TCPA cases involving fax transmissions. Any party facing a claim based on opt-out notices should take note of this order.
Continue Reading In One Action, FCC Rules Against 24 TCPA Petitioners but Grants Retroactive Waivers of Opt-Out Requirements for Faxes

With mid-term elections just around the corner, the FCC’s Enforcement Bureau issued a stern warning to political campaigns and calling services regarding their obligation to comply with the TCPA and stating that the Commission “will not hesitate to act to protect consumer privacy and their freedom from the nuisance of unwanted calls.”  The Enforcement Advisory reminded potential political callers that they may be liable for forfeiture penalties of up to $16,000 per violation of the rules.
Continue Reading FCC Reminds Political Campaigns of TCPA Obligations Ahead of Elections