Telephone Consumer Protection Act

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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 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 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…

“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 July 13, 2017, the three FCC Commissioners voted in favor of a Second Notice of Inquiry (NOI) to gather feedback on using numbering information to create comprehensive list that businesses can use to identify telephone numbers that have been reassigned from a consumer that consented to receiving calls to another consumer.  It also asks whether the Commission should “consider a safe harbor from [Telephone Consumer Protection Act] violations” for robocallers who use the reassigned number resource.  This action is the latest of several TCPA rulemaking actions initiated by Chairman Pai since he assumed leadership of the FCC.  While the action is a NOI – which is a precursor to proposed rules – the action signals the importance the new Chairman has placed on reducing the number of unwanted calls consumers receive.
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Continue Reading July 2017 FCC Meeting Recap: Commissioners Adopt Second Robocall NOI to Examine Reassigned Number Database Issues

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

To close out his first week as Chairman of the Federal Communications Commission, Ajit Pai spoke briefly at a meeting of the FCC’s Consumer Advisory Committee on Friday, January 27, 2017 and made clear that one of his priorities will be to address “robocalls,” which are the number one source of complaints to the FCC.  However, we expect that his methods will be much different than those employed during Chairman Wheeler’s tenure.
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Continue Reading FCC Chairman Pai Offers Ideas for “Aggressive Action” on TCPA Issues

With just under one month left in Chairman Tom Wheeler’s tenure, the Federal Communications Commission (FCC) has continued to publicize the agency’s focus on enforcing and increasing awareness of the Telephone Consumer Protection Act (TCPA).  Most recently, Chairman Wheeler issued a statement on December 21, 2016 to commemorate the 25th anniversary of the TCPA, in which he commented that “the Commission has renewed its commitment to a strong, pro-consumer reading of the [Act].”  The statement highlighted several specific examples of the Commission’s recent TCPA policy actions, including the Enforcement Bureau’s “robotext” advisory, the clarification on the TCPA’s applicability to calls from schools and utility companies, and the 2015 Omnibus TCPA Order that expanded the definition of an “autodialer” and established a one-call safe harbor for calls to reassigned phone numbers.  (Note: an appeal of the 2015 Omnibus TCPA Order is pending before the D.C. Circuit.  The FCC faced strong questioning at the oral argument, and we believe that the court’s decision may result in reversal of some of all of the FCC’s decision.)  The Commission separately marked the TCPA’s silver anniversary with a series of consumer-focused tweets about certain call restrictions provided for in the statute.
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Continue Reading FCC Continues TCPA Promotional Campaign

On December 21, 2016, the FCC’s Consumer and Governmental Affairs Bureau (CGB) released an order denying a request by Kohll’s Pharmacy & Homecare, Inc. (Kohll’s) for a declaratory ruling that facsimiles sent on its behalf did not violate the Telephone Consumer Protection Act (TCPA) “where the facsimiles simply informed businesses of the health benefits of corporate flu vaccines.”  Kohll’s claimed that such transmissions do not fit within the definition of an “unsolicited advertisement” because “the purpose of the facsimile transmission was to ‘promote wellness … so that people would get vaccinated and not get ill.’”  Alternatively, Kohll’s asked the FCC to issue an exemption from the TCPA for its faxes based on the Commission’s exemption for healthcare-related calls subject to the Health Insurance Portability and Accountability Act (HIPAA), or for a retroactive waiver of the fax advertisement rules.  The Bureau ruled against Kohll’s on each request.
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Continue Reading FCC Denies Petition for Declaratory Ruling on Fax Advertisements