On Friday, January 15, 2016, the Federal Communications Commission filed its response to the arguments of the joint Petitioners in the consolidated appeal from its July 10, 2015 Omnibus Ruling. The Commission’s brief addresses the scope of its statutory authority, the definition of an “automatic telephone dialing system” (“ATDS”), the meaning of “called party” and the potential liability for calls to recycled numbers, the ability to revoke consent, healthcare-related calls and the emergency purpose exception, and First Amendment challenges to the Commission’s interpretations of the statute. Its main arguments are summarized below.
The United States District Court for the Middle District of Florida (J. James D. Whittemore) recently granted LTD Financial Services, L.P.’s motion for partial summary judgment in a TCPA case involving pre-recorded calls allegedly placed to plaintiff’s cellular telephone. See Estrella v. LTD Financial Services, LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249 (M.D. Fla. Nov. 2, 2015). As we have previously covered, district courts across the country have demonstrated a willingness to dispose of cases where the records fail to establish that the calls or text messages at issue were sent using an automatic telephone dialing system (“ATDS”).
Drinker Biddle & Reath is a proud sponsor of one of the country’s most highly-anticipated conferences addressing key issues related to the TCPA, including the pending appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The PACE TCPA Washington Summit, which runs from September 27-29, 2015, features presentations from FCC Commissioner Michael O’Rielly, FTC Director of Consumer Protection Jessica Rich, and top class action defense lawyers, including our own Seamus Duffy.
More coverage to follow.
TCPA Blog contributors Brad Andreozzi, Seamus Duffy, Laura Phillips and Michael Stortz recently discussed the July 10th Declaratory Ruling and Order in a Q&A with Practical Law that was published on August 13, 2015. The Q&A answered a series of questions about the key holdings of the Declaratory Ruling, implications for companies facing potential exposure under the statute, and strategies for defending putative class actions in light of recent developments from the FCC and anticipated rulings from the United States Supreme Court. Practical Law distributed the Q&A to its subscribers, posted the Q&A on its website, and will include an updated version of the Q&A in the Practical Law Journal this fall.
As we previously noted, three petitions for review were filed in the immediate aftermath of the FCC’s Declaratory Ruling and Order, which were then consolidated and randomly assigned to the United States Court of Appeals for the D.C. Circuit. On August 7, 2015, MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, or in the alternative, leave to participate as amici curiae in support of petitioner, ACA International.
In the wake of its Open Meeting earlier today, the FCC issued a press release that promises “a package of declaratory rulings” that will bring “much needed clarity for consumers and businesses” on a variety of topics. Whether the rulings provide more answers than questions remains to be seen, as the Commission has yet to issue its order. What was on full display during the meeting and the subsequent press conferences, however, was how disenchanted Commissioners Pai and O’Rielly were with how the order had been negotiated. Neither they nor Chairman Wheeler were willing to elaborate in response to questions from reporters.
Judge Kathleen M. Williams of the Southern District of Florida handed GEICO a decisive victory on September 29, 2014, when she denied a renewed motion to certify a class of individuals who purportedly received robo-calls from GEICO because she found that the plaintiff failed to provide sufficient proof of numerosity.
Judge Amy J. St. Eve of the Northern District of Illinois recently held that a purported settlement agreement in a putative class action filed by Craftwood Lumber Co. against Interline Brands, Inc. was not enforceable. See Craftwood Lumber Co. v. Interline Brands Inc., No. 11-4462 (N.D. Ill. Sep. 23, 2014). Judge St. Eve held that the “Term Sheet” executed at the end of the parties’ mediation session lacked sufficient detail to establish that a binding and enforceable settlement had been reached.
Capital One and three collections agencies recently announced the largest proposed cash settlement in TCPA history – $75.5 million. This is more than double the amount of the prior record – a $32 million settlement from Bank of America.
The plaintiffs allege that Capital One and the other defendants used an ATDS to place debt collection calls to 21 million cell phone numbers without the requisite consent. Under the terms of the proposed settlement, Capital One will contribute $73 million to the settlement fund, while AllianceOne Receivables Management Inc., Leading Edge Recovery Solutions, LLC and Capital Management Services, L.P. will contribute $1.4 million, $996,205 and $24,220, respectively. The settlement agreement estimates that claimants will receive at least $20-$40 and allocates up to 30% of the settlement fund for an award of attorneys’ fees and costs in an amount to be set by the court. The settlement fund is non-reversionary. Capital One also agreed to take steps to ensure TCPA compliance going forward though it expressly disclaimed any liability in connection with the settlement.