As we previously reported, the Senate Committee on the Judiciary recently held a hearing entitled “The Impact of Lawsuit Abuse on American Small Businesses and Job Creators.” Although the TCPA was not the sole focus of the hearing, concerns about abusive lawsuits are highly applicable in the TCPA context.
A recent decision from the Northern District of Ohio highlights the importance of having a carefully drafted arbitration agreement in callers’ customer-facing contracts. See Treinish v. BorrowersFirst, Inc., No. 17-1371, 2017 U.S. Dist. LEXIS 145772 (N.D. Ohio Sept. 8, 2017).
The Plaintiff in Treinish had borrowed money from the Defendant. Id. at *1. Their contract contained two notable provisions: a provision that agreed to resolve disputes in arbitration and a provision that consented to receive automated calls from the Defendant and related entities on her cellphone. Id. at *1-2. Continue reading
On Tuesday, October 3, 2017, the Senate confirmed Chairman Ajit Pai to a second term at the FCC, enabling him to potentially stay on as chairman until the end of 2021. Originally appointed by President Obama in 2012, Chairman Pai was a member of the Republican minority on the Commission until early 2017, when former Chairman Tom Wheeler resigned and President Trump elevated Pai to the chairmanship. While Pai’s term technically ended in 2016, FCC rules allowed him to keep serving until the end of 2017 while the Senate considered his re-nomination. Continue reading
On July 13, 2017, the FCC sought comment on how it should address the problem of autodialed or prerecorded calls to “reassigned numbers”—numbers that once were used by an individual from whom the caller obtained consent, but have since been recycled and given to a different individual. Reassigned numbers pose a risk of extensive TCPA liability even for those callers that try hard to do everything right, as there is no perfect system to accurately identify all reassigned numbers at the moment they are reassigned. It is little surprise, then, that dozens of commenters chose to weigh in on the FCC’s proposal to create a database for this purpose.
At its monthly Open Meeting on June 22, the FCC voted to issue a Notice of Apparent Liability for Forfeiture (NAL) finding that Adrian Abramovich (Abramovich) apparently perpetrated one of the largest spoofed robocall campaigns that the agency has ever investigated. The FCC, through its Enforcement Bureau, concurrently released a separate Citation and Order notifying Abramovich that he also violated the Telephone Consumer Protection Act (TCPA) as well as the federal wire fraud statute by making these same illegal telemarketing calls to emergency lines, wireless phones, and residential phones, and that the calls included prerecorded messages falsely claimed affiliation with well-known U.S. travel and hotel companies, thus defrauding unsuspecting consumers receiving these calls. Continue reading
May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership. Continue reading
On February 8, 2017, the FCC issued a public notice seeking comment on a petition for rulemaking and declaratory ruling (the “Petition”) filed by Craig Moskowitz and Craig Cunningham (the “Petitioners”). The Petition seeks the initiation of a rulemaking to overturn the FCC’s allegedly “improper interpretation that ‘prior express consent’ includes implied consent resulting from a party’s providing a telephone number to the caller.” Continue reading
Following an explosion in September in the Chelsea neighborhood of New York City and discovery of other unexploded homemade bomb devices, the New York Police Department identified a suspect, Ahmad Khan Rahami, who was sought in connection with the bombings and attempted bombings in Manhattan and New Jersey. For the first time ever in this circumstance, the NYPD used a communications tool initially known as the “Commercial Mobile Alert System” (CMAS) and later renamed to be “Wireless Emergency Alerts” or WEA to function as an electronic wanted poster. This was in contrast to more familiar uses of this emergency communications capability, such as the localized transmission of severe weather advisories or Amber Alerts. Under FCC rules, these alerts are originated by authorized federal, state and local governments, and they currently are used to geographically target 90-character messages that fall into three distinct categories: Presidential, Imminent Threat, and Amber Alerts. Continue reading
On August 11, 2016, the FCC released a Report and Order implementing Section 301 of the Bipartisan Budget Act of 2015 (the “Budget Act”), which exempts autodialed and prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States” from the TCPA’s prior express consent requirement. The Budget Act provision also authorizes the FCC to adopt rules to “restrict or limit the number and duration” of any wireless calls made to collect debts owed to or guaranteed by the federal government. Continue reading
For some time the FCC’s Chairman, Tom Wheeler, has been calling on wireless and wireline carriers alike to take more aggressive steps to assist consumers in preventing unwelcome or unsolicited calls and spam messages. The FCC’s July 10, 2015 Declaratory Ruling, for example, contained a discussion focused on resolving the question of whether carriers had a legal obligation to transmit all calls without blocking. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd 7961, ¶¶ 152-63 (July 10, 2015). The Declaratory Ruling affirmed that nothing in the Communications Act or FCC rules or orders prohibits carriers from offering or implementing call blocking technologies for those customers who choose to use them. Id. Continue reading