At the Federal Communications Bar Association’s TCPA symposium in D.C. last month, panelists from the Federal Communications Commission (FCC) and private practice expressed uncertainty regarding when the D.C. Circuit would issue its much-anticipated ruling in the appeal of the FCC’s July 2015 Declaratory Ruling and Order (the “2015 Order”). It turns out that that day is today. And the ruling was well worth the wait. Continue reading
On February 15, 2018, leaders from the government and private practice came together to discuss the current TCPA and TSR legal and compliance landscape, as well as where the FCC and FTC are likely to direct their efforts going forward. The Federal Communications Bar Association’s Privacy and Data Security Committee assembled two tremendous panels to discuss these hot-button issues. 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
In TCPA Blog’s latest column for Law360, Mike Daly and Meredith Slawe discuss the “unrelenting” pace of TCPA litigation in 2017, particularly claims targeting retail text message programs. They discuss the FCC’s rulings on number of issues and explore the different approaches of the previous administration and the current administration under Chairman Ajit Pai. They also recount what Chairman Pai has described as the “ridiculous lengths” to which some plaintiffs have gone to exploit the TCPA:
That was, if anything, an understatement. Some plaintiffs have taken to buying phones and requesting area codes for regions where debt collection calls are common, hiring staff to log calls in order to file hundreds of lawsuits, porting a repeating digit phone number from a landline to a cellphone, asking employees to text ‘JOIN’ to unknown company numbers, and even teaching classes on how to sue telemarketers. Others have sent demand letters after purporting to revoke their consent—often moments after enrolling in a text program—by using anything other than the obvious word “stop.” These plaintiffs will receive text advising them that they can opt out by texting “stop” but will try to trap businesses by responding with unorthodox synonyms such as “cease,” “desist,” “refrain,” or “halt,” which will not trigger many opt-out mechanisms. Responses such as these are not even believable, let alone “reasonable.” And the certification of a class of such people would be inappropriate for a whole host of reasons. But plaintiffs know that defending even these claims would not be without cost or inconvenience, and businesses continue to receive demand letters every day.
They conclude that, “[i]n the absence of meaningful congressional or regulatory reform and as we await a ruling from the D.C. Circuit on the proper interpretation of the statute, retailers should continue to mitigate their TCPA risk by observing best practices and engaging in active vendor management.”
On July 10, 2015, a sharply divided FCC issued a Declaratory Ruling and Order (the “July 2015 Order”) that missed the mark. The July 2015 Order purported to expand the scope of the TCPA through its unsupported redefinition of an “automatic telephone dialing system,” create an untenable one call “safe harbor” for reassigned number liability, and permit parties to revoke consent through any “reasonable” means. The July 2015 Order is presently on appeal in the D.C. Circuit, and there is hope that the Court, which heard argument on October 19, 2016, will undo its pronouncements, which have had broad implications for businesses that place calls and send text messages to consumers for telemarketing or informational purposes. These companies have faced potentially crushing liability through a huge wave of TCPA actions (both proposed class actions and individual claims) as well as pre-suit demands, many of which have been initiated by opportunistic plaintiffs’ lawyers and serial plaintiffs. Continue reading
TCPA Blog’s Michael Daly and Meredith Slawe were recently quoted in the Law360 article, “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.” They explained that “[t]he best approach to defending TCPA cases is to master the facts of each case as early as possible and map out multiple paths to victory. Oftentimes, the smallest details can mean the difference between whether or not a call qualifies as ‘telemarketing’ or a consumer provided ‘consent’ or equipment qualifies as an ‘automatic telephone dialing system.’” The remainder of the article examines other factors from both plaintiffs’ and defendants’ perspectives.
A much-anticipated TCPA class action trial was set to begin next week in Birchmeier et al. v. Caribbean Cruise Line Inc., et al., in the United States District Court for the Northern District of Illinois. According to published reports, however, a class-wide settlement was reached yesterday in this protracted litigation with a history of controversial rulings by the District Court.
Under the terms of the agreement, defendants will pay in the range of $56-$76 million, to settle the claims of class including approximately one million people who received robocalls from defendants in 2011-2012. Class members will reportedly receive $500 for each call received, with the total amount paid to be determined based on how many claims are made.
The case has a long history, including controversial decisions by the District Court to certify the class in 2014, and a decision earlier this year to maintain certification despite the United States Supreme Court’s affirmation in Spokeo v. Robins that a mere statutory violation does not support Article III jurisdiction. The upcoming trial, which had been scheduled to begin on September 12, 2016, appeared to mark one of the few instances in which a TCPA class action would be resolved through trial and potential appeal.
While specific details are yet to arrive, this settlement illustrates the very real risks of TCPA class action litigation given the current uncertainty of the law. While the outcome at settlement is perhaps unique to this litigation, in part due to the District Court’s decisions to this point, further clarity on these key issues arising under the statute remains much needed.