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
Most COVID-19 Calls Are Not an “Emergency Purpose,” and Other Unexpected Developments
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
Lopsided Circuit Split Favors Narrow Definition of Autodialer
Update: On 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
Privacy Class Action Win Underscores Need for TCPA Reform
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
D.C. Circuit Issues Long-Awaited Decision on FCC’s 2015 TCPA Order
Nearly two and a half years following the appeal of the Federal Communications Commission’s (FCC) July 2015 Order, the U.S. Court of Appeals for the District of Columbia issued a ruling on March 16, 2018. On appeal, over a dozen entities sought review of the 2015 Order, in which the FCC interpreted various aspects of
No Written Consent, But Still No Harm: TCPA Class Certification Denied Where Spokeo Creates Individualized Questions of Consent
Earlier this year, the Northern District of Illinois declined to certify a Telephone Consumer Protection Act (TCPA) class action even though the key issue in the case – whether class members had provided prior express written consent to receive prerecorded telemarketing calls – appeared to be a common question. In Legg v. PTZ Insurance Agency,
Call Me Maybe: Equivocal Statements May Partially Revoke Consent Under TCPA
In a recent decision, the 11th U.S. Circuit Court of Appeals reversed a grant of summary judgment in favor of a bank on Telephone Consumer Protection Act (TCPA) claims, by holding that a consumer can partially revoke her previously provided consent.
In Schweitzer v. Comenity Bank, the plaintiff sued the bank under the TCPA
D.C. Circuit Strikes FCC’s Rule Requiring Opt-Out Notice on Solicited Faxes
On March 31, the U.S. Court of Appeals for the D.C. Circuit struck down a Federal Communications Commission (FCC) rule requiring that solicited fax advertisements contain a notice on how to opt out of future faxes. Following the ruling, such opt-out notices will be required only in unsolicited fax advertisements. The decision in Bais Yaakov