Allegations of Equipment’s Potential Functionalities Not Sufficient to Survive Motion to Dismiss after ACA Int’l

On July 12, 2018, the Northern District of Ohio dismissed a complaint that failed to “allege any facts that [the defendant] uses a system that has the ability to store or produce telephone numbers to be called using a random or sequential number generator.” Lord v. Kisling, Nestico & Redick, LLC, No. 1:17-CV-01739, 2018 WL 3391941, at *3 (N.D. Ohio July 12, 2018) [hyperlink]. It is the latest court to follow the lead of the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687, 692 (D.C. Cir. 2018), that vacated the FCC’s interpretation of automatic telephone dialing systems (“ATDS”). Continue reading   »

Following ACA Int’l, Third Circuit Holds that Yahoo!’s Email-to-Text System is not an ATDS

The Third Circuit recently affirmed the Eastern District of Pennsylvania’s finding that Yahoo!’s email-to-text alert system does not qualify as an automatic telephone dialing system (“ATDS”). (Our previous discussions of this case are here, here, and here.) Following the District of Columbia Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Third Circuit held that the system at issue must be analyzed using a “present capacity” standard and that the plaintiff had failed to present any evidence to show that, under this standard, the system could function as an autodialer. Continue reading   »

TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls

One of the central issues that was before the D.C. Circuit in ACA International v. FCC was whether the term “called party” refers to the intended or the unintended recipient of a call. In its July 10, 2015 Declaratory Ruling and Order, the FCC interpreted the term to be the current “subscriber” on the account to which the phone number is assigned or “the non-subscriber customary user of the phone.” Under this interpretation, businesses that try in good faith to contact consumers who have consented to receive such calls face significant liability with minimal recourse, when those calls reach someone else. The D.C. Circuit set aside the FCC’s “treatment of reassigned numbers as whole,” which includes its interpretation of called party. In light of the D.C. Circuit’s ruling, the FCC is currently seeking comment on critical TCPA issues with an eye toward taking a much broader view of the TCPA landscape than it did in its 2015 TCPA Order. In the meantime, one business involved in a TCPA action is seeking indemnification from the consumer it intended to reach in making the calls that form the basis of the TCPA action against it. Continue reading   »

Comments Filed in Reassigned Numbers and Post-ACA International Proceedings

Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading   »

District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC

The District of Arizona recently became one of the first courts in the country to address the definition of an ATDS in light of the D.C. Circuit’s blockbuster ruling in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). Our previous client alert regarding ACA predicted that the decision would provide TCPA defendants with increased opportunities to defeat claims based on plaintiffs’ failure to prove the use of an ATDS. The Herrick v. GoDaddy.com, LLC case exemplifies how defendants can use the ACA decision to combat TCPA claims on this issue and hopefully foreshadows an emerging wave of favorable decisions. Continue reading   »

Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices

The Southern District of Ohio recently denied class certification because the defendant’s unrebutted testimony—which established that its procedures ensured that faxes were only sent to those who had given their prior express permission—created individualized issues that predominated over any common ones. See Sawyer v. KRS Biotechnology, 2018 U.S. Dist. LEXIS 8595 (S.D. Oh. May 30, 2018).        Continue reading   »

FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants. Continue reading   »

Industry Groups Urge FCC to Clarify ATDS After ACA Int’l

On May 3, 2018, a broad range of 18 industry groups led by the U.S. Chamber of Commerce petitioned the FCC to take much-needed action to curb abusive TCPA litigation stemming from prior FCC and court interpretations of the definition of an automatic telephone dialing system (“ATDS”). The petition naturally followed from the D.C. Circuit’s decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018) to vacate the FCC’s ATDS interpretation contained in the 2015 FCC Declaratory Ruling and Order (“2015 TCPA Order”) as unreasonable, arbitrary and capricious. The petitioners seek clarity on the definition of an ATDS so businesses can better understand how they can effectively communicate with their customers without fear of liability under Section 227(b) of the TCPA. Continue reading   »

Senators Urge FCC to Act in the Face of ACA Int’l

On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions: Continue reading   »