FCC Receives Comments on Definition of ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC

We previously described the Ninth Circuit’s decision in Marks v. Crunch San Diego which, contrary to the D.C. Circuit’s ACA International ruling in March of this year, treated the definition of an ATDS expansively, holding that that statutory definition of an ATDS includes equipment that has the capacity (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator. We explained how the Ninth Circuit’s decision represented an improper interpretation of the ATDS statutory language. And we previously reported how the FCC sought expedited public comment on the Marks decision. Continue reading   »

District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment

Recently, the Eastern District of Michigan granted a motion for summary judgment in Gary v. Trueblue, Inc., No. 17-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018), after finding that a plaintiff failed to show that defendants’ telephone dialing system qualified as an ATDS under the statute’s plain language. This decision adds to the growing list of cases applying the plain language of the statute in the wake of ACA International. Continue reading   »

Court Holds Web-Based Texting Platform is Not an ATDS Because of Need for Human Intervention

A federal district court in the Southern District of Florida joined a list of courts that have found a web-based text messaging platform to fall outside the purview of the TCPA due to the amount of human intervention required to send a text message. In Ramos v. Hopele of Fort Lauderdale, LLC, et al., the plaintiff brought a putative class action alleging that the defendants violated the TCPA by sending her unsolicited text messages. The parties each moved for summary judgment. The plaintiff argued that the texting platform was, as a matter of law, an ATDS. The defendants argued that the web-based texting platform at issue did not meet the statutory definition of an ATDS because it cannot send text messages without human intervention. Continue reading   »

FCC Seeks Further Comment on the Definition of an ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC

On October 3, 2018, the FCC issued a Public Notice requesting further comment on “what constitutes an automatic telephone dialing system” under the terms of the TCPA in light of the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018). Continue reading   »

Another District Court Rejects FCC Prior Orders on ATDS in Light of ACA International

One of the central issues before the D.C. Circuit in ACA International v. FCC was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. It did not, and as we explained at the time the decision was issued, the D.C. Circuit set aside not only the portion of the FCC’s July 2015 Declaratory Ruling and Order pertaining to ATDS, but also the FCC’s prior rulings dating back to 2003. Following ACA International, and while the FCC considers how to amend its now-invalidated prior rulings, the plaintiffs’ bar has attempted to narrow the reach of ACA International, arguing that the D.C. Circuit set aside only the 2015 Declaratory Ruling and Order, and that the validity of the FCC’s prior rulings was not under review. Just as the D.C. Circuit rejected this argument, district courts across the country continue to reject this argument, most recently a federal district court in the Central District of California. Continue reading   »

FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants. Continue reading   »

Senators Urge FCC to Act in the Face of ACA Int’l

On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions: Continue reading   »

To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision

Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in  Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response. Continue reading   »

Supreme Court Denies Petition Seeking Review of D.C. Circuit Fax Decision Holding that FCC Exceeded Its Authority

The Supreme Court today denied the petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC, thus leaving in place the D.C. Circuit’s ruling that “although the [Telephone Consumer Protection Act] requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.”  852 F.3d 1078, 1082 (D.C. Cir. 2017).  Our summary of the briefing on the petition is available here.

As we’ve discussed previously, the D.C. Circuit’s ruling (binding nationwide pursuant to the Hobbs Act) makes it much tougher for plaintiffs in TCPA fax suits to certify a class.  The plaintiffs’ bar has typically sought to certify classes based on violations of the opt-out notice requirement for solicited faxes, because a class defined in such a way side-stepped the inherently individualized issue of whether the fax was solicited or not. With the opt-out notice requirement for solicited faxes eliminated, plaintiffs’ attorneys have a much tougher challenge.  Indeed, in Alpha Tech Pet, Inc. v. Lagasse, LLC, No. 16 C 513, 2017 U.S. Dist. LEXIS 182499 (N.D. Ill. Nov. 3, 2017), a district court relying on the D.C. Circuit’s decision found that individualized issues of consent precluded certification of a class of fax recipients where certification could not be premised on whether the faxes included an opt-out notice.  The plaintiff in Alpha Tech has appealed that decision, arguing (among other things) that the D.C. Circuit’s decision is not binding in the Seventh Circuit.  Given the significance of this issue for the plaintiff’s bar, we can expect to continue to see collateral challenges like this to the repeal of the FCC’s solicited fax rule notwithstanding that the D.C. Circuit’s decision in Bais Yaakov is now final.

Briefing Concludes on Cert Petition Seeking Supreme Court Review of D.C. Circuit Fax Decision

On January 30, 2018, briefing closed on the petition for certiorari filed in the Supreme Court by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC.  The class action plaintiffs are seeking review of the D.C. Circuit’s March 2017 decision (discussed at length here, here, here, and here) holding that the FCC exceeded its statutory authority when it promulgated regulations in 2006 requiring that a fax advertisement sent with the prior express consent of the recipient include an opt-out notice because “although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.”  Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017). Continue reading   »