On May 3, 2018, a broad range of 18 industry groups led by the U.S. Chamber of Commerce petitioned the FCC to take much-needed action to curb abusive TCPA litigation stemming from prior FCC and court interpretations of the definition of an automatic telephone dialing system (“ATDS”). The petition naturally followed from the D.C. Circuit’s decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018) to vacate the FCC’s ATDS interpretation contained in the 2015 FCC Declaratory Ruling and Order (“2015 TCPA Order”) as unreasonable, arbitrary and capricious. The petitioners seek clarity on the definition of an ATDS so businesses can better understand how they can effectively communicate with their customers without fear of liability under Section 227(b) of the TCPA. Continue reading “Industry Groups Urge FCC to Clarify ATDS After ACA Int’l”
Faegre Drinker
Articles by Faegre Drinker:
FCC Releases Draft Second Further Notice of Proposed Rulemaking on Reassigned Numbers Database
In anticipation of its March 22 Public Meeting, the FCC on March 1 released a draft of a Second Further Notice of Proposed Rulemaking addressing comments received on its earlier Notice of Inquiry on proposals for a database to identify reassigned numbers (FNPRM). The FNPRM was released alongside the FCC’s Public Meeting Agenda. The draft FNPRM primarily seeks comment on: (1) the specific information that callers would need from any reassigned number database; and (2) the best way to make that information available to callers. The draft will be considered for adoption by the full Commission at the meeting. Continue reading “FCC Releases Draft Second Further Notice of Proposed Rulemaking on Reassigned Numbers Database”
To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision
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 “To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision”
Senate Judiciary Holds Hearing on Abusive Lawsuits
As we previously reported, the Senate Committee on the Judiciary recently held a hearing entitled “The Impact of Lawsuit Abuse on American Small Businesses and Job Creators.” Although the TCPA was not the sole focus of the hearing, concerns about abusive lawsuits are highly applicable in the TCPA context.
Continue reading “Senate Judiciary Holds Hearing on Abusive Lawsuits”
U.S. Senate Votes for More Pai
On Tuesday, October 3, 2017, the Senate confirmed Chairman Ajit Pai to a second term at the FCC, enabling him to potentially stay on as chairman until the end of 2021. Originally appointed by President Obama in 2012, Chairman Pai was a member of the Republican minority on the Commission until early 2017, when former Chairman Tom Wheeler resigned and President Trump elevated Pai to the chairmanship. While Pai’s term technically ended in 2016, FCC rules allowed him to keep serving until the end of 2017 while the Senate considered his re-nomination. Continue reading “U.S. Senate Votes for More Pai”
The TCPA and Its Implications for Credit Unions
TCPA Blog contributor Michael Stortz and TCPA Blog editor Michael Daly will discuss the TCPA at the Regulatory Compliance Seminar of the National Association of Federally-Insured Credit Unions (NAFCU) on October 10, 2017. This discussion will provide an overview of the statute, including recent regulatory developments at the FCC and recent judicial interpretations of the statute’s applicability and requirements. It will also explore the potential risks that credit unions face and best practices for proactively managing them.
For more information about the seminar, please visit the NAFCU website.
FCC Seeks Comment on Reassigned Numbers; Dozens of Commenters Answer the Call
On July 13, 2017, the FCC sought comment on how it should address the problem of autodialed or prerecorded calls to “reassigned numbers”—numbers that once were used by an individual from whom the caller obtained consent, but have since been recycled and given to a different individual. Reassigned numbers pose a risk of extensive TCPA liability even for those callers that try hard to do everything right, as there is no perfect system to accurately identify all reassigned numbers at the moment they are reassigned. It is little surprise, then, that dozens of commenters chose to weigh in on the FCC’s proposal to create a database for this purpose.
Continue reading “FCC Seeks Comment on Reassigned Numbers; Dozens of Commenters Answer the Call”
FCC Releases Two Notices of Inquiry Addressing Reassigned Numbers and Caller ID Spoofing
The FCC released two notices of inquiry (NOIs) related to TCPA issues last week: one on how to better track reassigned numbers, and another on tightening industry wide techniques to discourage Caller ID spoofing, one category of illegal robocalls. Each NOI seeks public comment.
Reassigned Numbers NOI
On July 13, 2017, the FCC released an NOI addressing the issue of identifying reassigned phone numbers. Specifically, as the FCC notes, in many cases the recipient of a reassigned number may be subject to unwanted calls that the prior holder of the number consented to; and conversely, the previous holder of the reassigned number is no longer receiving those calls for which she gave consent. According to the NOI:
Approximately 35 million telephone numbers are disconnected and aged each year, and according to one source 100,000 numbers are reassigned by wireless carriers every day. Consumers change telephone numbers for a variety of reasons, including switching wireless providers without porting numbers and getting new wireline telephone numbers when they move. Once a consumer drops a number, he or she might not update all parties who have called in the past, including robocallers to which the consumer gave prior express consent. NOI, ¶ 5.
In light of the FCC ruling in July 2015 that clarified a range of potential liabilities for calling reassigned numbers, the issue has resulted in a substantial amount of litigation and liability risk for companies that have received consent to place calls to numbers that have subsequently been reassigned. Further, the FCC notes that, despite the TCPA and FCC rules, complaints about unwanted calls, historically have been one of the FCC’s largest sources of informal complaints.
FCC Proposes $120 Million in Fines for Serial Spoofer and Warns that Spoofer’s TCPA and Wire Fraud Activities Must Cease
At its monthly Open Meeting on June 22, the FCC voted to issue a Notice of Apparent Liability for Forfeiture (NAL) finding that Adrian Abramovich (Abramovich) apparently perpetrated one of the largest spoofed robocall campaigns that the agency has ever investigated. The FCC, through its Enforcement Bureau, concurrently released a separate Citation and Order notifying Abramovich that he also violated the Telephone Consumer Protection Act (TCPA) as well as the federal wire fraud statute by making these same illegal telemarketing calls to emergency lines, wireless phones, and residential phones, and that the calls included prerecorded messages falsely claimed affiliation with well-known U.S. travel and hotel companies, thus defrauding unsuspecting consumers receiving these calls. Continue reading “FCC Proposes $120 Million in Fines for Serial Spoofer and Warns that Spoofer’s TCPA and Wire Fraud Activities Must Cease”
Revocation of Consent Must Be Reasonable and Recollected
Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading “Revocation of Consent Must Be Reasonable and Recollected”