On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.
TCPA Blog contributor Justin Kay was quoted in the Law360 article titled, “High Court Punt Plunges TCPA Suits Into Greater Uncertainty,” which examines potential ramifications of the Supreme Court’s recent decision in PDR Network LLC et al. v. Carlton & Harris Chiropractic Inc.
Earlier this week, the Supreme Court declined to review a Ninth Circuit ruling regarding what does and doesn’t qualify as an “advertisement.” Supply Pro Sorbents, LLC v. RingCentral, Inc., No. 18-1381, 2019 WL 1959304 (U.S. June 17, 2019).
Fax cover pages were at issue. The defendant in the case allows customers to send online faxes. Those faxes include a cover page with one line of text that identifies the company (“Send and receive faxes with RingCentral”) and its website (“www.ringcentral.com”). The filer alleged that those cover sheets were advertisements, and therefore that the defendant had violated the TCPA because it did not have recipients’ consent to send them. Continue reading
While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.
In a recent Northern District of Illinois case, a plaintiff’s TCPA claim was dismissed after the court found that the complaint did not contain sufficient facts to plausibly allege the defendant had used an ATDS. See Bader v. Navient Solutions, LLC, No. 18-1367, 2019 WL 2491537 (N.D. Ill. June 14, 2019). This is yet another example of a case in which a plaintiff failed to plead the use of an ATDS under post-ACA International v. Federal Communications Commission, 885 F.3d 687, 693 (D.C. Cir. 2018) standards. Continue reading
TCPA Blog senior editor Michael Daly was quoted in a Law360 article regarding the Fourth Circuit’s ruling in Krakauer v. Dish Network, which affirmed the certification of Do-Not-Call claims and the award of $61 million in statutory damages.
Mike and others predicted that plaintiffs will try to invoke the Fourth Circuit’s decision in other kinds of TCPA cases. Mike explained that “[p]laintiffs will no doubt take out of context the Fourth Circuit’s statement that ‘TCPA claims’ are ‘conducive’ to class treatment.” “But that would be painting with too broad a brush,” he explained, because “other species of TCPA claims . . . necessarily turn on inherently individualized questions of consent and revocation of consent, among other things.”
The Fourth Circuit’s decision also serves as an important reminder that plaintiffs may try to hold businesses liable for calls that their vendors make. Mike explained that “the Krakauer decision is—as if anyone still needed one—a wake-up call.” He cautioned that business must be “hypervigilant about what they and their vendors are doing. They should not simply rely on contractual provisions disclaiming agency and requiring compliance and indemnification.”
By directing voice service providers to deal with “unwanted calls” as part of its anti-robocall policies, the FCC seems to have moved well beyond addressing “illegal and spoofed robocalls.” The text of the FCC’s new “Call Blocking by Default” approach was released late on June 7, 2019, which, as we previously predicted, contains several changes to the draft version of the Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM). Depending upon your point of view, the Third FNPRM contains either a few hopeful signs that the FCC understands and is willing to address the practical effects of its highly consequential blocking edict, or troubling confirmation that it has little idea of what it has unleashed on businesses and consumers. Continue reading
Voice service providers soon may dictate which calls will reach you. The FCC honed in on “unwanted calls” when it voted at its Open Meeting today to adopt a Declaratory Ruling and Third Further Proposed Rulemaking (the Third FNPRM) permitting voice service providers to implement “Call Blocking by Default.” We are awaiting and will report on the ruling and notice when it is released. Continue reading