On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.
In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient. See Pub. L. No. 109-21, 119 Stat. 359 (2005). The FCC has defined the “sender” of a fax for liability purposes as any “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10) (2019). The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax. See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).
Chicago partner Brad Andreozzi was quoted in a Law360 article discussing both the need for automated calls and texts to disseminate timely health and safety information about the COVID-19 pandemic and the uptick in robocalls seeking to profit from fears in the face of the pandemic. According to Brad, “There are two strands running through the FCC’s regulatory strategy right now. One is to promote genuine emergency-purposes communications … and the other is to issue a warning shot across the bow to would-be scammers who are looking to exploit the pandemic.”
It can fairly be said that the statutory definition of “automatic telephone dialing system” (“ATDS”) has generated far more questions than answers—for courts and litigants alike. This is especially true in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), where the D.C. Circuit set aside the FCC’s sweeping interpretation of the ATDS definition, and thus handed the baton back to the Commission to provide guidance on what is (and is not) an ATDS. But almost two years later, the FCC has yet to issue its ruling.
In the many TCPA cases that turn on the definition of ATDS, defendants may wish to file a motion to stay the action so that the court can await guidance from the FCC’s anticipated ruling on this issue. Indeed, over the course of the last year, multiple federal judges, at least in Florida, have been willing to grant such motions, particularly because the ATDS definition is also center stage in an appeal pending before the Eleventh Circuit. See Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499 (11th Cir. filed Oct. 24, 2018).
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.
The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action. The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf. Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019). The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls. Continue reading
TCPA Blog contributor Justin Kay was quoted in the Law360 article titled, “High Court Punt Plunges TCPA Suits Into Greater Uncertainty,” which examines potential ramifications of the Supreme Court’s recent decision in PDR Network LLC et al. v. Carlton & Harris Chiropractic Inc.
Earlier this week, the Supreme Court declined to review a Ninth Circuit ruling regarding what does and doesn’t qualify as an “advertisement.” Supply Pro Sorbents, LLC v. RingCentral, Inc., No. 18-1381, 2019 WL 1959304 (U.S. June 17, 2019).
Fax cover pages were at issue. The defendant in the case allows customers to send online faxes. Those faxes include a cover page with one line of text that identifies the company (“Send and receive faxes with RingCentral”) and its website (“www.ringcentral.com”). The filer alleged that those cover sheets were advertisements, and therefore that the defendant had violated the TCPA because it did not have recipients’ consent to send them. Continue reading
While the FCC has a record open to adopt guidance and a new definition for what it considers as an “automatic telephone dialing system” (ATDS) and related TCPA matters, there appears to be growing consensus on “Robocall” legislation in the two houses of Congress that may be moving TCPA legislation closer to reality. On the heels of the Senate passing Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”)Senate Bill 151 (entitled “Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act”), the House of Representatives yesterday introduced a new bipartisan bill – House Bill 3375 – that would bolster the prospects that Congress may be able to pass legislation this year.