On March 7, 2018, the Federal Communications Commission and the Federal Trade Commission issued a joint announcement regarding two upcoming events “aimed at furthering the fight against illegal robocalls and caller ID spoofing.” The announcement states that the events will “highlight cooperative efforts by the two agencies to combat illegal calls and promote innovative solutions to protect consumers.” The first event is a policy forum the two agencies will be co-hosting on March 23, 2018. The agencies intend to discuss “the regulatory challenges posed by illegal robocalls and what the FCC and FTC are doing to both protect consumers and encourage the development of private-sector solutions” at the forum. Additional information on the forum is available here. The second event is an expo the two agencies will be co-hosting on April 23, 2018. The Stop Illegal Robocalls Expo will showcase “technologies, devices, and applications to minimize or eliminate the illegal robocalls consumers receive.” Additional information on the expo, including how to participate in the expo, is available here.
Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response. Continue reading
On February 15, 2018, leaders from the government and private practice came together to discuss the current TCPA and TSR legal and compliance landscape, as well as where the FCC and FTC are likely to direct their efforts going forward. The Federal Communications Bar Association’s Privacy and Data Security Committee assembled two tremendous panels to discuss these hot-button issues. Continue reading
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
The Supreme Court today denied the petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC, thus leaving in place the D.C. Circuit’s ruling that “although the [Telephone Consumer Protection Act] requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” 852 F.3d 1078, 1082 (D.C. Cir. 2017). Our summary of the briefing on the petition is available here.
As we’ve discussed previously, the D.C. Circuit’s ruling (binding nationwide pursuant to the Hobbs Act) makes it much tougher for plaintiffs in TCPA fax suits to certify a class. The plaintiffs’ bar has typically sought to certify classes based on violations of the opt-out notice requirement for solicited faxes, because a class defined in such a way side-stepped the inherently individualized issue of whether the fax was solicited or not. With the opt-out notice requirement for solicited faxes eliminated, plaintiffs’ attorneys have a much tougher challenge. Indeed, in Alpha Tech Pet, Inc. v. Lagasse, LLC, No. 16 C 513, 2017 U.S. Dist. LEXIS 182499 (N.D. Ill. Nov. 3, 2017), a district court relying on the D.C. Circuit’s decision found that individualized issues of consent precluded certification of a class of fax recipients where certification could not be premised on whether the faxes included an opt-out notice. The plaintiff in Alpha Tech has appealed that decision, arguing (among other things) that the D.C. Circuit’s decision is not binding in the Seventh Circuit. Given the significance of this issue for the plaintiff’s bar, we can expect to continue to see collateral challenges like this to the repeal of the FCC’s solicited fax rule notwithstanding that the D.C. Circuit’s decision in Bais Yaakov is now final.
On January 30, 2018, briefing closed on the petition for certiorari filed in the Supreme Court by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC. The class action plaintiffs are seeking review of the D.C. Circuit’s March 2017 decision (discussed at length here, here, here, and here) holding that the FCC exceeded its statutory authority when it promulgated regulations in 2006 requiring that a fax advertisement sent with the prior express consent of the recipient include an opt-out notice because “although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017). Continue reading
On December 22, 2017, the FTC issued its Biennial Report to Congress on the National Do-Not-Call Registry, which lists the telephone numbers at which individuals have requested that they not be called by telemarketers. The report provides an overview of the Registry’s operations for 2016 and 2017 and guidance for continued compliance with the Registry in 2018 and beyond. The key takeaways from the Report are discussed below. Continue reading
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