Comments Filed in Reassigned Numbers and Post-ACA International Proceedings

Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). 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   »

District Court Reinforces Requirement that Revocation of Consent Must be Reasonable

The District of New Jersey recently dismissed a class action TCPA complaint, finding that the plaintiff did not use a reasonable method of revoking consent when she failed to follow the defendant’s straightforward directions for providing such revocation. Rando v. Edible Arrangements Int’l, LLC, No. 17-0701, 2018 U.S. Dist. LEXIS 51201 (D.N.J. Mar. 28, 2018). In doing so, the court’s decision further confirmed the position within the District that the totality of the circumstances dictates whether a method of revocation of consent is reasonable and thus valid in TCPA cases. Continue reading   »

Worth the Wait! D.C. Circuit Vacates Key Portions of FCC’s July 2015 TCPA Order

At the Federal Communications Bar Association’s TCPA symposium in D.C. last month, panelists from the Federal Communications Commission (FCC) and private practice expressed uncertainty regarding when the D.C. Circuit would issue its much-anticipated ruling in the appeal of the FCC’s July 2015 Declaratory Ruling and Order (the “2015 Order”). It turns out that that day is today. And the ruling was well worth the wait. Continue reading   »

Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment

A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading   »

Yet Another Court Rejects Yet Another Contrived Revocation of Consent Claim

Yesterday the District of New Jersey issued an important decision that reinforces—as we have explained before both here and elsewhere—that a plaintiff’s alleged revocation of consent must be reasonable rather than fanciful. Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243 (D.N.J. Nov. 27, 2017).

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Second Circuit Doubles Down On Decision Prohibiting Unilateral Revocation of Consent From Bilateral Contract

We reported in June on a Second Circuit decision holding that a consumer cannot unilaterally revoke consent that she provided in a bilateral contract. “It is black letter law,” the court explained, “that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty,” and that “consent to another’s actions can ‘become irrevocable’ when it is provided in a legally binding agreement.” As a result, the TCPA “does not permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.”

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Court Compels Arbitration of TCPA Claims Due to Broad Arbitration Agreement with Survival Clause

A recent decision from the Northern District of Ohio highlights the importance of having a carefully drafted arbitration agreement in callers’ customer-facing contracts. See Treinish v. BorrowersFirst, Inc., No. 17-1371, 2017 U.S. Dist. LEXIS 145772 (N.D. Ohio Sept. 8, 2017).

The Plaintiff in Treinish had borrowed money from the Defendant. Id. at *1. Their contract contained two notable provisions: a provision that agreed to resolve disputes in arbitration and a provision that consented to receive automated calls from the Defendant and related entities on her cellphone. Id. at *1-2. Continue reading   »