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
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
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
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.
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
Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.
As we predicted, the D.C. Circuit today denied the plaintiff’s petition for a rehearing en banc of the panel decision striking down the FCC’s regulations requiring opt-out notices on solicited faxes. The per curiam order notes only that “[u]pon consideration of the petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.” This result is hardly surprising given (i) the FCC Chairman’s current position that the panel decision overturning the FCC was correct (an anomaly that is the result of turnover at the Commission following the election results in November 2016) and (ii) the infrequency with which petitions for rehearing en banc are granted. We expect that the plaintiffs’ bar will continue its appeal efforts via a petition for writ of certiorari to the United States Supreme Court, but also expect that effort to meet the same fate as the petition for rehearing.
As we’ve previously reported, on March 31, the DC Circuit issued a 2-1 opinion in the Bais Yaakov appeal holding that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. Given the profound impact we expect that ruling to have in TCPA fax litigation, it is no surprise that the plaintiffs’ bar is fighting that decision: on April 28, 2017, the plaintiff intervenors in the Bais Yaakov appeal filed a petition for rehearing en banc before the full D.C. Circuit. Continue reading
TCPA Blog contributor Justin Kay was recently quoted in the Law360 article, “FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits.” The D.C. Circuit’s recent decision negating an FCC regulation requiring opt-out notices on solicited faxes is likely to have long-term consequences for TCPA class actions. Continue reading