On April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved a circuit split regarding the meaning of “automatic telephone dialing system” (autodialer or ATDS) under the Telephone Consumer Protection Act (TCPA). In a decision authored by Justice Sonia Sotomayor, the court adopted the narrow, pro-defendant definition of autodialer.

Continue Reading U.S. Supreme Court Adopts Narrow Autodialer Definition in 9-0 Defense Victory

UpdateOn April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved the circuit split regarding the meaning of “automatic telephone dialing system” under the Telephone Consumer Protection Act. For more details, see our alert.

On Dec. 8, 2020, the U.S. Supreme Court heard long-awaited oral argument in Facebook v. Duguid on what constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA).


Continue Reading U.S. Supreme Court Signals Narrow Interpretation of TCPA’s Autodialer Definition

Did the U.S. Supreme Court ruling in Barr v. American Association of Political Consultants wipe out nearly five years of liability under the Telephone Consumer Protection Act? One district court answered yes. Does the TCPA apply to text messages? An amicus brief in another case headed to the Supreme Court argued no.

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Update: The Supreme Court on July 9 agreed to take up the issue of what constitutes an “automatic telephone dialing system” under the TCPA. For more details, please see our December 15 alert.

The meaning of “automatic telephone dialing system” (ATDS or “autodialer”) under the Telephone Consumer Protection Act (TCPA) has sharply divided courts, but businesses will soon have clarity. The U.S. Supreme Court on July 9, 2020, granted a petition for a writ of certiorari to resolve this hotly contested issue and the evolving circuit split.


Continue Reading SCOTUS to Resolve Autodialer Circuit Split

The U.S. Supreme Court on July 6, 2020, issued its long-awaited opinion in Barr v. American Association of Political Consultants, which addressed whether a 2015 amendment to the Telephone Consumer Protection Act (TCPA) permitting automated calls to collect debts owed to or guaranteed by the federal government violated the First Amendment. In an unsurprising ruling, the U.S. Supreme Court affirmed the decision of the 4th U.S. Circuit Court of Appeals and invalidated the 2015 government-debt exception, but left intact the TCPA’s general prohibition on automated calls to cell phones without consent.

Continue Reading Supreme Court Resolves Constitutional Challenge to Telephone Consumer Protection Act

The global pandemic has not prevented courts from addressing a host of controversial TCPA topics, starting with the biggest controversy of all: whether the Telephone Consumer Protection Act itself is unconstitutional. The U.S. Supreme Court made history this month by hearing oral arguments on this question remotely. Meanwhile, the 11th U.S. Circuit Court of Appeals weighed in on whether revocation can be limited by contract, and the 3rd Circuit addressed whether an invitation to buy — as opposed to an invitation to sell — constitutes a “solicitation” under the TCPA’s fax provisions.

Continue Reading Is the TCPA Unconstitutional and Other Controversies Percolating in the Courts

The COVID-19 pandemic has impacted nearly every facet of society in unpredictable ways, and the laws and regulations governing calls and text messages are no exception. The Federal Communications Commission (FCC) issued a recent declaratory ruling clarifying when calls and text messages relating to COVID-19 are permissible under the TCPA’s “emergency purposes” exception, but most businesses will not be able to rely on that exception. In certain states, COVID-19 state-of-emergency declarations have triggered widespread restrictions on telemarketing. In non-COVID-19 news, debate continues over what constitutes an “automatic telephone dialing system” (ATDS) under the TCPA, and — in a surprising turn of events — the 2nd U.S. Circuit Court of Appeals has joined the 9th Circuit in adopting a broad definition.


Continue Reading Most COVID-19 Calls Are Not an “Emergency Purpose,” and Other Unexpected Developments

UpdateOn April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved the circuit split regarding the meaning of “automatic telephone dialing system” under the Telephone Consumer Protection Act. For more details, see our alert.

Update: The Supreme Court on July 9 agreed to take up the issue of what constitutes an “automatic telephone dialing system” under the TCPA. For more details, please see our December 15 alert.

As additional appellate courts grapple with the TCPA’s definition of “automatic telephone dialing system” (ATDS), the split among the U.S. Circuit Courts of Appeals has become increasingly lopsided, with the 7th and 11th Circuits now joining the 2nd, 3rd and 6th Circuits to construe the term narrowly. The 9th Circuit stands alone in adopting a broad definition of ATDS, but was recently asked to reconsider that ruling.


Continue Reading Lopsided Circuit Split Favors Narrow Definition of Autodialer

On April 12, an Oregon federal jury in Wakefield v. Visalus, Case No. 3:15-cv-01857-SI, handed down what may turn out to be the largest Telephone Consumer Protection Act (TCPA) class action verdict ever awarded.

Health supplement marketer ViSalus, a lifestyle products company, was charged with making more than 1.8 million autodialed calls in violation of the TCPA. The court certified a class of 800,000 members. Although the jury did not assess a monetary award, the court will award statutory penalties pursuant to the TCPA, which prescribes up to $500 per violation and $1500 per willful violation. The total penalty could reach almost $1 billion, and if the court finds willfulness, this award could conceivably be tripled.
Continue Reading Privacy Class Action Win Underscores Need for TCPA Reform