As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling

Reflecting the nearly universal sense by constituents that call spoofing and other illegal forms of robocalls are annoying and unwelcome, on November 15, a bipartisan team of United States senators, Senators Markey, Thune and Wicker, introduced a bill titled the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” also known as the TRACED Act. The bill is designed to provide the FCC and other federal agencies acting in concert with the FCC with additional tools to combat spoofing and other illegal robocalling operations by amending Section 227 of the Communications Act to provide for enhanced civil penalties for violation of TCPA rules. Specifically, the bill would provide the FCC going forward with forfeiture authority to assess civil penalties of up to $10,000 per illegal robocall violation and extend the current FCC statute of limitations to investigate TCPA violations from the current one year to three years. The bill also creates new criminal fines of up to $10,000 per violation that can be trebled if the activity was intentional. The FCC would have 270 days following enactment to develop implementing regulations. The bill does not introduce any changes to the current private right of action provisions of Section 227 of the Act. Continue reading   »

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   »

Mind the Details: Defendant Observes that Key FCC Order Never Took Effect; Wins Judgment on Pleadings

A new case out of Indiana, Sanford v. Navient Solutions, LLC, 2018 WL 4699890 (S.D. IN Oct. 01, 2018), underscores the importance of delving into the details of the FCC materials on which plaintiffs rely to support their claims.

In Sanford, relatively straightforward allegations—the defendant’s continued use of autodialed calls after the plaintiff revoked consent—were complicated by the fact that the federal government owned the debt at issue in the calls. The TCPA prohibits “mak[ing] any call (other than a call made for emergency purpose or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to “a cellular telephone service   . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). 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   »

Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take

As discussed here on the Blog, the Ninth Circuit ruled last Friday in Marks v. Crunch San Diego, LLC that equipment need not have the capacity to dial numbers randomly or sequentially to be an ATDS under the TCPA. Rather, according to the Ninth Circuit, it is sufficient for equipment to have the capacity “to store numbers to be called . . . and to dial such numbers automatically (even if the system must be turned on or triggered by a person)” to be an ATDS.

Law360 also published an article addressing the impact of the decision entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take,” and TCPA Blog contributor Justin Kay was quoted in the article. 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   »

TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls

One of the central issues that was before the D.C. Circuit in ACA International v. FCC was whether the term “called party” refers to the intended or the unintended recipient of a call. In its July 10, 2015 Declaratory Ruling and Order, the FCC interpreted the term to be the current “subscriber” on the account to which the phone number is assigned or “the non-subscriber customary user of the phone.” Under this interpretation, businesses that try in good faith to contact consumers who have consented to receive such calls face significant liability with minimal recourse, when those calls reach someone else. The D.C. Circuit set aside the FCC’s “treatment of reassigned numbers as whole,” which includes its interpretation of called party. In light of the D.C. Circuit’s ruling, the FCC is currently seeking comment on critical TCPA issues with an eye toward taking a much broader view of the TCPA landscape than it did in its 2015 TCPA Order. In the meantime, one business involved in a TCPA action is seeking indemnification from the consumer it intended to reach in making the calls that form the basis of the TCPA action against it. 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   »