After examining why TCPA cases alleging autodialer claims have fallen into disfavor with plaintiffs’ attorneys, we discuss the increasing volume of TCPA cases involving do-not-call (DNC) claims. Topics include how the DNC registries operate, coverage of the TCPA DNC prohibitions, elements of a DNC claim, exceptions and defenses, penalties and other available relief, and arguments available to defendants for defeating DNC class actions.… Continue Reading
The Federal Communications Commission adopts measures targeting artificial or prerecorded telephone calls to residential telephone lines
On December 30, 2020, the Federal Communications Commission (FCC) released its Report and Order, implementing provisions of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”).
By way of background, the Telephone Consumer Protection Act of 1991 (TCPA) includes a provision that bans “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party,” unless a statutory or regulatory exception applies.… Continue Reading
FCC reverses course on whether TCPA applies to federal government contractors
In an Order on Reconsideration issued December 9, 2020, the Federal Communications Commission concluded that the TCPA applies to contractors working for the federal government. The Order reverses a 2016 Declaratory Ruling. Unlike the 2016 ruling in which it declined to address state and local governments, the FCC also determined in the Order that the TCPA does not apply to state governments but state government contractors and local governments are subject to the TCPA.… Continue Reading
DISH Network Agrees To Pay $210 Million for Vendors’ Violations In Historic Department of Justice Telemarketing Enforcement Action
A recent settlement between the U.S. Department of Justice and a media conglomerate underscores the importance of implementing robust Telephone Consumer Protection Act compliance measures, including for third-party vendors. In 2017, a jury found DISH Network LLC liable for its vendors’ violations of the Telemarketing Sales Rule and the Telephone Consumer Protection Act, as well as several state statutes. … Continue Reading
Eleventh Circuit Eliminates Incentive Awards for Class Action Plaintiffs
In a split decision, the Eleventh Circuit rejected a $6,000 incentive award for the named plaintiff in a TCPA class action. According to the majority in Johnson v. NPAS Solutions, LLC, U.S. Supreme Court precedent prohibits such awards—a holding that is bound to discourage class actions in the Eleventh Circuit.… Continue Reading
Sixth Circuit widens circuit split over TCPA autodialer definition
In Allan v. Pa. Higher Educ. Assistance Agency, the U.S. Court of Appeals for the Sixth Circuit held that the Telephone Consumer Protection Act’s (TCPA) statutory definition of an automatic telephone dialing system (“ATDS”) includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates.… Continue Reading
SCOTUS agrees to decide when a device is an autodialer under the TCPA
Days after missing the opportunity in Barr v. American Association of Political Consultants to limit the improper impact of the Telephone Consumer Protection Act on legitimate businesses, the U.S. Supreme Court has agreed to tackle the most debated issue in TCPA litigation history. The U.S. Supreme Court has agreed to decide what qualifies as an automatic telephone dialing system (ATDS).… Continue Reading
SCOTUS rules TCPA exception for automated calls to collect government debts violates First Amendment but leaves TCPA’s general automated call restriction in place
On July 6, the U.S. Supreme Court ruled in Barr v. American Association of Political Consultants that the Telephone Consumer Protection Act’s exception from its automated call restriction for calls to collect government debts violates the First Amendment of the U.S. Constitution. The Court also decided that the proper remedy for the constitutional violation is to sever the exception from the remainder of the TCPA, thereby making calls to collect government debts subject to the TCPA’s automated call restriction and otherwise leaving the restriction in place for any other calls to which it now applies.… Continue Reading
This week’s podcast: Revoking consent under the Telephone Consumer Protection Act: a discussion of recent case law developments
The issue of whether a consumer can unilaterally revoke consent to receive automated remains a significant concern for industry. We look at how the FCC and courts have approached the issue and discuss recent significant decisions from federal appeals courts holding that the TCPA does not allow a consumer to unilaterally revoke consent when it is given as part of a bargained-for exchange.… Continue Reading
Ninth Circuit rules TCPA prior express consent for autodialed calls must come from current subscriber, not intended recipient
The U.S. Court of Appeals for the Ninth Circuit has joined the Seventh and Eleventh Circuits in ruling that the “prior express consent” required by the Telephone Consumer Protection Act (TCPA) for autodialed calls to cellular phones must come from the current subscriber and not the intended recipient of the call.… Continue Reading