The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor

In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading   »

Alleged Oversight and Monitoring of a Messaging Campaign Deemed Inadequate to Establish Agency

Another court decision reminds us that conclusory allegations that an agency relationship exists should not be sufficient to impute TCPA liability on the alleged beneficiary of a messaging campaign. Pleadings that lack plausible allegations showing “some degree of control over who sent the text and the manner and means by which it was sent” can lead to dismissal – with prejudice, if the plaintiff has run out of a reasonable number of opportunities to amend.

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Court Applies the Seventh Circuit’s Gadelhak Decision and Grants Summary Judgment Against Certified Class

The Southern District of Indiana recently entered summary judgment against a certified class of TCPA plaintiffs because it concluded that defendants’ SoundBite platform did not qualify as an ATDS under the standard the Seventh Circuit recently established in Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020).  Lanteri v. Credit Prot. Ass’n, L.P., No. 13-cv-01501, 2020 WL 3200076, *8 (S.D. Ind. June 15, 2020).  Our previous coverage of Gadelhak can be found here.  The Lanteri v. Credit Protection Association, L.P. decision illustrates that Gadelhak provides defendants facing TCPA claims in the Seventh Circuit with strong defenses to ATDS allegations.

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Supreme Court Agrees To Review ATDS Definition

Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s restrictions on automated telephone equipment.

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Regulatory Updates: FCC to Vote on “Robocall” Measures to Mitigate Erroneous Blocking and to Advance Reassigned Numbers Database Rules to the Next Step

The FCC recently reported a decrease of approximately 60% of consumer robocall complaints and a drop of approximately 30% in volume of “unwanted robocalls” that were placed in the first half of 2020 as compared to the first half of 2019. Considering that the FCC adopted the first-of-its-kind “call blocking by default” framework in June 2019, some might wonder: Does this mean the FCC’s “call blocking by default” framework has been successful?

While the FCC cited to voice service providers reporting that they have so far only discovered less than 1% of – or as few as 0.2% of – blocked calls to be false positives, the seemingly low percentage still means that millions of lawful and wanted calls have been erroneously blocked. For example, Hiya reported that it has blocked nearly 800 million calls in 2019, which could mean that 0.2% of which – 1.6 million calls – had been blocked in error in that year. Likewise, Nomorobo blocked over 512 million robocalls in 2019; its blocking platform may have affected the delivery of 1.024 million lawful calls in that year.

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Supreme Court Strikes Government-Debt Exception But Saves Other Restrictions on Automated Telephone Equipment

On July 6, 2020, the Supreme Court issued a highly anticipated—and highly fractured—ruling in Barr v. American Association of Political Consultants. The nine Justices produced four opinions, none of which commanded a majority. But six of the Justices agreed that the TCPA’s government-debt exception violated the First Amendment, and seven agreed that it could be severed from the rest of the TCPA. The result, then, is that the exception was stricken but the restrictions on automated telephone equipment were saved.

Writing for the plurality, Justice Kavanaugh made quick work of the government’s argument that the exception was content-neutral: “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.” Because the exception was content-based, the plurality applied strict scrutiny—a standard that the government had conceded it could not satisfy.

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Supreme Court Issues Highly Anticipated First Amendment Ruling in Barr v. AAPC

This morning, the United States Supreme Court issued its highly anticipated ruling in Barr v. American Association of Political Consultants. The decisions are fractured, but a majority of the Justices coalesced around finding that the federal debt-collection exception (1) violated the First Amendment but (2) could be severed from the statute such that the restrictions on automated telephone equipment remain in place. Notably, however, Justice Gorsuch filed and Justice Thomas joined a separate opinion that poked holes in the remedy—which is to say, the absence of a remedy—and urged the Court to revisit its approach to severability in general. We are reviewing the various opinions and will report back with a more thorough analysis shortly.

Divided Third Circuit Panel Holds that Offers to Buy Can Qualify as “Advertisements” Under the TCPA

A divided panel of the Third Circuit Court of Appeals recently reversed the dismissal of TCPA claims, finding that the faxes at issue were advertisements within the meaning of the TCPA. Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). The Court made this finding even though the faxes at issue did not attempt to sell anything, but rather contained offers to buy the recipients’ services.

In Fischbein, the Third Circuit heard two consolidated appeals in which plaintiffs alleged that the defendants had violated the TCPA by sending them faxes that offered money in exchange for responses to market research surveys. Id. at 561. In both cases, the trial court dismissed the claims because the faxes were not an attempt to sell anything, and thus were not “advertisements” such that the sender needed a recipient’s prior express consent. A divided panel of the Third Circuit disagreed because, in its view, an offer to buy products, goods, or services can also qualify as an advertisement under the TCPA. Id. at 561.

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FCC Affirms that Health Plans and Providers Cannot Offer Post-Call Opt-Out in Lieu of “Prior Express Consent”

The FCC’s Consumer and Governmental Affairs Bureau last week issued a declaratory ruling resolving a long-pending Petition on the question of whether certain healthcare-related calls, given their significance and value for consumers, should be entirely exempted from the TCPA’s prior express consent requirement, or at least exempted as long as consumers are allowed to opt out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or expand the scope of exemptions already in place for certain types of health-care-related calls.

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FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”

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