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
As we previously reported, the Federal Communications Commission and the Federal Trade Commission recently issued a joint announcement regarding two events “aimed at furthering the fight against illegal robocalls and caller ID spoofing.” The first event was a joint policy forum that was held on March 23, 2018. The second event, which will be held on April 23, 2018, is an expo that will “showcase technologies, devices, and applications to minimize or eliminate the illegal robocalls consumers receive.”
The free and public expo will feature brief remarks from FCC Chairman Ajit Pai and acting FTC Chairman Maureen K. Ohlhausen, as well as demonstrations from the following companies:
- Call Control
- Comcast Corporation
- Digitone Communications
- First Orion Corp.
- Neustar Communications
- Reverd LLC
- Scammer Jammer
- South Coast Telecom Inc.
- VTech Communications, Inc.
Additional information on the Stop Illegal Robocalls Expo is available here.
On March 7, 2018, the Federal Communications Commission and the Federal Trade Commission issued a joint announcement regarding two upcoming events “aimed at furthering the fight against illegal robocalls and caller ID spoofing.” The announcement states that the events will “highlight cooperative efforts by the two agencies to combat illegal calls and promote innovative solutions to protect consumers.” The first event is a policy forum the two agencies will be co-hosting on March 23, 2018. The agencies intend to discuss “the regulatory challenges posed by illegal robocalls and what the FCC and FTC are doing to both protect consumers and encourage the development of private-sector solutions” at the forum. Additional information on the forum is available here. The second event is an expo the two agencies will be co-hosting on April 23, 2018. The Stop Illegal Robocalls Expo will showcase “technologies, devices, and applications to minimize or eliminate the illegal robocalls consumers receive.” Additional information on the expo, including how to participate in the expo, is available here.
A recent ruling from the Southern District of Ohio reveals the lengths to which some plaintiffs will go to manufacture TCPA claims – and how some courts are refusing to allow them to get away with such blatant manipulation. In Johansen v. National Gas & Electric LLC, No. 17-587, 2017 U.S. Dist. LEXIS 208878 (S.D. Ohio Dec. 20, 2017), the plaintiff alleged that the defendant violated the TCPA by calling him on three separate days even though his residential telephone number is on the National Do Not Call Registry. Before the court were two different motions filed by the defendant: a motion to compel arbitration and a motion to stay class discovery. Continue reading
Happy holidays to all the readers of the TCPA Blog! Below is a link to an article written by Michael Daly, Meredith Slawe, and John Yi on some recent decisions addressing contrived revocation of consent claims in text message based lawsuits.
One of the central issues in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order is whether the term “called party” refers to the intended or actual recipient of the call. The FCC’s Order interpreted the term “called party” to be the “subscriber” or “non-subscriber customary user” of the phone that was called, regardless of whether the caller meant to call someone else. Under this interpretation, businesses that in good faith attempt to contact consumers who have consented to receive such calls face significant liability when those calls reach someone else instead. Continue reading
The explosion of litigation under the Telephone Consumer Protection Act (“TCPA”) has continued through the second quarter of 2017. Businesses have been anxiously awaiting a ruling from the D.C. Circuit in the appeal of the Federal Communications Commission’s (“FCC”) July 2015 Declaratory Ruling and Order as well as reforms from the FCC itself. As the wait continues, promising developments have been emerging from the courts. On June 22, 2017, the Second Circuit—in a common sense and practical opinion in Reyes v. Lincoln Auto. Fin. Servs., No. 16-2104 (2d Cir.)—acknowledged that contract is king and that a party cannot unilaterally modify its terms. In affirming summary judgment in favor of the defendant, the court cited the Restatement (Second) of Contracts and explained that “[i]t is black letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.” Its opinion in this TCPA action has significant implications for businesses that have standard contracts with their customers. And it is a welcome step in the right direction. Continue reading
Dish Network LLC (“Dish”) recently filed a motion for a new trial after a jury found Dish liable for more than 51,000 calls to 18,000 class members, resulting in an award of $20.5 million.
In Krakauer v. Dish Network LLC, No. 14-0333 (M.D.N.C.), the plaintiff alleged that he had received telemarketing sales calls from an authorized dealer of Dish despite registering his number on the National Do Not Call Registry. He further alleged that these calls continued even after his telephone number was placed on both Dish’s and its authorized dealer’s internal Do Not Call Lists. Before trial, the court certified two classes: the first consisting of persons who received telemarketing calls despite having their telephone numbers on the National Do No Call Registry, and the second consisting of persons who received telemarketing calls despite having their telephone numbers on the internal Do Not Call Lists of Dish or its authorized dealer. Continue reading
Yesterday, the FCC’s Consumer and Governmental Affairs Bureau held an informational webinar titled “How to Deal with Robocalls.” Kristi Thornton (Associate Division Chief, Consumer Policy Division) began by providing background on the TCPA and robocalls, as well as recent FCC actions pertaining to federal debt collection calls and the emergency purposes exception as it relates to calls placed by schools and utility companies. We previously reported on these actions here and here. Continue reading
On December 9th, the Federal Trade Commission released its annual National Do Not Call Registry Data Book for Fiscal Year 2016, which spans from October 1, 2015 through September 30, 2016. The Data Book contains statistical information regarding the number of telephone numbers registered on the Do Not Call Registry, the number of entities that access phone numbers on the Do Not Call Registry, and the number of complaints submitted to the FTC about companies allegedly violating the do-not-call rules. Statistics regarding numbers registered and complaints submitted are also categorized by state and area code in the appendix. Some highlights from the Data Book include:
- There were 226,001,288 telephone numbers on the Do Not Call Registry compared to 222,841,484 telephone numbers the year before;
- There were 5,340,234 consumer complaints compared to 3,578,711 consumer complaints the year before; and
- There were 2,353 entities who paid fees to access the Do Not Call Registry, 17,634 entities who accessed five or fewer area codes from the Do Not Call Registry at no charge, and 503 exempt entities that engaged in calls that either did not involve the sale of goods or services or were directed to persons whom they have an established business relationship with or whom they have obtained express written agreement to call.
This is the eighth year that the FTC has released a National Do Not Call Registry Data Book.