Legislation Looking Likely on a Number of TCPA “Hot-Button” Issues

Senate Bill 151, now called “the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (the “TRACED Act”), has been reconciled with the House of Representatives’ bipartisan bill House Bill 3375 and was passed in the House on December 4, 2019. This revised amendment has been returned to the Senate for a final vote and is expected to become final legislation “if not this week, then next week,” according to the bill’s sponsor, Representative John Thune. Thus, the prospects for passage of TCPA legislation currently look quite positive.

As drafted, the legislation will kick off a number of activities by the FCC, and may, as a practical matter, require the agency to take prompt actions on long-awaited rulings on critical statutory definitions. We highlight below some of the most notable revisions in the TRACED Act made since July 2019.

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The First Amendment Battleground: SCOTUS Asked to Review Two Ninth Circuit Decisions on the Constitutionality of the TCPA

In the span of fifteen days, TCPA defendants in two separate cases asked the U.S. Supreme Court to review two distinct but interwoven Ninth Circuit decisions on the constitutionality of the TCPA. Specifically, Facebook, Inc. and Charter Communications, Inc. are each asking the Court to rule that the TCPA’s prohibitions on calls made using an ATDS or an artificial or prerecorded voice contravene the First Amendment because they are “content-based” restrictions on speech and that the Ninth Circuit erred in “remedying” the constitutional violation—by severing the TCPA’s exemption for calls made to collect a government debt—rather than invalidating the entire statute. Facebook, Inc. v. Duguid, Petition for Writ of Certiorari, No. 19-511 (Oct. 17, 2019) (“Facebook Petition”); Charter Commc’ns, Inc. v. Gallion, Petition for Writ of Certiorari, No. 19-575 (Nov. 1, 2019) (“Charter Petition”). The two cases represent the most recent escalation of the growing trend in litigation challenging the TCPA’s ability to withstand First Amendment scrutiny.

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As Courts Grapple With The Severability of The Federal Debt-Collection Exemption, SCOTUS Is Asked to Resolve The Issue

The 2016 amendments to the TCPA—which created an exemption for calls that are made “solely to collect a debt owed to or guaranteed by the United States”—have inadvertently reshaped the way that TCPA claims are litigated. While early decisions in Indiana, Alabama, and Florida rejected claims under the FCC’s proposed implementing rules because they never became effective, more recent decisions have focused on whether the exemption, and by extension the entire statute, violates the First Amendment.  The first of those was the Fourth Circuit’s decision in American Association of Political Consultants v. FCC, which was soon followed by the Ninth Circuit and the Southern District of Florida.

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Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing

The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.

Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading   »

One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise

Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading   »

Second Circuit Again Rejects TCPA Claims Over Health Care Calls

The Second Circuit yesterday delivered a ruling that was widely expected but also widely welcomed by health care providers struggling to provide patients with important reminders while avoiding massive TCPA class action liabilities. Zani v. Rite Aid Hdqtrs. Corp., 17-1230-cv (Feb. 21, 2018), affirmed summary judgment in favor of Rite Aid over its prerecorded flu shot reminder calls. We wrote about the lower court decision in Zani here. The Second Circuit’s ruling came as no surprise because the same court last month ruled for another health care provider in rejecting TCPA claims over flu shot reminder texts. We analyzed that case, Latner v. Mount Sinai Health System, Inc., 879 F.3d 52 (2d Cir. 2018), here. Indeed, finding that the issues in Zani were “virtually identical” to those in Latner (Opinion, p. 5), the Second Circuit delivered its latest ruling in a non-precedential summary order. Continue reading   »

Second Circuit Rules That a Flu Shot Reminder Text Message Does Not Violate the TCPA

We have previously discussed the FCC’s 2012 TCPA exception for automated calls that deliver a “health care message” (the “2012 Health Care Exception”).  Now, for the first time, a federal appellate court has construed the scope of the 2012 Health Care Exception. In Latner v. Mount Sinai Health Sys., No. 17-99-cv (2d Cir. Jan. 3, 2018), the Second Circuit ruled that a healthcare provider did not run afoul of the TCPA by sending a patient a flu shot reminder text message after the patient had given consent to use his information—including his cell phone number—for “treatment” purposes. The decision is a favorable one for healthcare providers who utilize text messaging (or automated calls) to provide treatment reminders to patients. Indeed, the Second Circuit interpreted the 2012 Health Care Exception more broadly than the trial court had done in what was previously the leading decision applying the exception to reject TCPA claims attacking flu shot reminders, Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017). Zani is due to be argued before the Second Circuit on February 7th and the Second Circuit’s decision in Latner obviously bodes well for Rite Aid’s prospects of winning an affirmance on appeal. Continue reading   »

Rite Aid Wins Summary Judgment in TCPA Class Action Over Flu Shot Reminder Calls

A New York U.S. District Court Judge granted summary judgment in favor of defendant Rite Aid Headquarters Corp. in a putative TCPA class action involving flu vaccine reminder calls. The opinion in Zani v. Rite Aid Headquarters Corp., 14-cv-9701, was recently unsealed after originally being filed under seal on March 30, 2017. In Zani, the court found that Rite Aid’s call to the plaintiff’s cellphone that used a pre-recorded voice to remind him to get his flu shot fell under what the Court referred to as the “Health Care Rule,” which exempted the call from the prior written consent requirement for telemarketing calls under the TCPA. Continue reading   »

FCC Denies Petition by Mortgage Bankers Association to Exempt Certain Mortgage Servicing Calls from Prior Express Consent Requirement

On November 15, the FCC’s Consumer and Governmental Affairs Bureau denied a petition by Mortgage Bankers Association (MBA)[1] that sought an exemption from the FCC’s prior express consent requirement for non-telemarketing residential mortgage servicing calls to wireless numbers. In its Order, the Bureau concluded that MBA had failed to show (1) that the calls om question would be free of charge to consumers; and (2) that the parties seeking relief should be able to send non-time-sensitive calls to consumers without their consent.[2]

The Bureau’s Order explained that the TCPA “reflects Congress’ recognition of the potential costs and privacy risks imposed on wireless consumers from the use of autodialer equipment, which can generate large numbers of unwanted calls,” and accordingly, the FCC has generally attempted to balance and accommodate the legitimate business interests of callers in addition to recognized consumer privacy interests.[3] Continue reading   »

FCC Issues Declaratory Ruling Confirming an Exemption from Certain of the TCPA’s Restrictions for the Federal Government and its Contractors When Acting within Scope of an Agency Relationship

The FCC recently issued a declaratory ruling addressing petitions that had been filed by Broadnet Teleservices LLC (“Broadnet”), National Employment Network Association (“NENA”), and RTI International (“RTI”), each of which sought guidance or clarification on the extent of the TCPA’s governmental exception when a contractor is placing calls or texts pursuant to its work on behalf of the government. Each of the petitioners provide, or have members that provide, calling services on behalf of federal government entities; Broadnet offers teletown hall calling services for state and local governments as well and RTI performs social science survey work for entities such as the Centers for Disease Control and Prevention (CDC). NENA represents providers of employment services to beneficiaries of Social Security Disability Insurance and Supplemental Security Income. These providers are required to contact program-eligible beneficiaries to provide information about potential programs and services.
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