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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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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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Court Dismisses Claims that Shopping Platform was Directly or Vicariously Liable for Retailer’s Texts

The Northern District of California recently granted a motion to dismiss, finding the plaintiff failed to plausibly allege that e-commerce platform Shopify was directly or vicariously liable for the alleged TCPA violations of a retailer using the platform. Sheski v. Shopify (USA) Inc., No. 19-CV-06858, 2020 WL 2474421 (N.D. Cal. May 13, 2020).

The plaintiff filed a putative class action complaint alleging, among other claims, that the defendants Shopify (USA) Inc. and Shopify Inc. (collectively, “Shopify”) violated the TCPA due to Shopify’s “unlawful practice of making, facilitating and participating in an unauthorized text message marketing campaign en masse to consumers’ cellular telephones.”

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Taking Side on Circuit-Splitting Issue, Texas District Court Holds that Facebook Promotional Texts Were Not Sent Using ATDS

The Western District of Texas recently dismissed with prejudice a TCPA suit against Facebook brought by Colin Suttles, an individual who claimed he received thirty-two unsolicited texts from the company encouraging him to visit Facebook.com. Suttles v. Facebook, Inc., No. 1:18-CV-1004, at 2 (W.D. Tex. May 20, 2020).

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11th Circuit Holds that Consumers Cannot Unilaterally Revoke Contractual Consent to Automated Calls

The Eleventh Circuit recently affirmed the district court’s summary judgment ruling that a defendant’s calls did not violate the Telephone Consumer Protection Act (“TCPA”) because consumers cannot unilaterally revoke consent that was part of a bilateral contract.

In Medley v. Dish Network, LLC, No. 18-13841, 2020 WL 2092594 (11th Cir. May 1, 2020), Medley entered a two-year contract with DISH for satellite television services. As part of the service contract, Medley provided her cell phone number to DISH and expressly authorized DISH “‘to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.’” Medley, 2020 WL 2092594, at *1. Approximately eleven months later, Medley temporarily suspended her service under an optional provision of the contract, which triggered a $5.00 monthly fee in lieu of service charges. Medley then underwent bankruptcy, which discharged approximately $800 that she owed to DISH. Following this discharge, DISH called Medley to recover outstanding fees accrued as a result of her temporary pause in service. In response to emails from DISH, Medley’s bankruptcy lawyer sent DISH faxes stating that the lawyer represented Medley with regard to her debts.  DISH continued to contact Medley following these faxes.

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District of New Jersey Adopts Narrow ATDS Definition as Circuit Split Grows; Supreme Court Clarification Required

As readers of this blog know, a robust Circuit split has developed regarding the meaning of an ATDS. The Second and Ninth Circuits have taken one approach, while the Third, Seventh, and Eleventh Circuits have taken another. While we await Supreme Court guidance, lower courts continue to grapple with the ATDS issue. In Eisenband v. Pine Belt Automotive, Inc., No. 17-8549 (FLW) (LHG), 2020 WL 1486045 (D.N.J. Mar. 27, 2020), the District of New Jersey analyzed the definition of an ATDS and concluded that equipment that dials numbers from a manually prepared list  does not constitute an ATDS.

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Supreme Court to Hold Oral Argument via Teleconference in Barr v. American Association of Political Consultants

The Supreme Court announced today that it will hold oral argument via teleconference for Barr v. American Association of Political Consultants and a number of other cases that have come before it this term. The Barr case poses two questions about the TCPA: First, whether the TCPA’s exception for calls regarding “debt owed to or guaranteed by” the United States is an unconstitutional content-based restriction on speech; and second, if the government-debt exception is indeed unconstitutional, whether the proper remedy is simply to sever that exception, or instead to strike the statute’s restrictions on automated telephone equipment in their entirety. The Court’s willingness to conduct remote oral argument for Barr indicates a desire to decide the case before the end of the current term.

Oral argument for Barr is to be held at some point in May, depending on the availability of counsel. The Court plans to broadcast a live audio feed of the oral argument.

U.S. Financial Institutions Petition FCC to Exclude Their Informational Calls from TCPA Liability During the COVID-19 Pandemic

On March 30, 2020, the American Bankers Association (“ABA”) and several other associations of banks and credit unions (together, “petitioners”) effectively asked the FCC to exempt all COVID-related calls and texts to consumers from TCPA liability as communications “made for emergency purposes.” Petition for Expedited Declaratory Ruling, Certification, or Waiver of the American Bankers Association et al., CG Docket No. 02-278, at 4 (Mar. 30, 2020) [hereinafter “ABA Petition”].

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Robocalls a Weapon for Good and Evil in Coronavirus Fight

Chicago partner Brad Andreozzi was quoted in a Law360 article discussing both the need for automated calls and texts to disseminate timely health and safety information about the COVID-19 pandemic and the uptick in robocalls seeking to profit from fears in the face of the pandemic. According to Brad, “There are two strands running through the FCC’s regulatory strategy right now. One is to promote genuine emergency-purposes communications … and the other is to issue a warning shot across the bow to would-be scammers who are looking to exploit the pandemic.”

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Eleventh Circuit Narrows ATDS Definition

One area of continued confusion and conflict among courts reviewing TCPA cases has been how each approaches the scope of the statutory definition of an autodialer, as this critical matter can spell the difference between calls being deemed violative of the statute or acceptable. Last week, the Eleventh Circuit addressed a pair of appeals disputing the scope of the definition of “automatic telephone dialing system” (“ATDS”) under the TCPA. In Glasser v. Hilton Grand Vacations Co., the Eleventh Circuit determined that ATDS should include only equipment that generates numbers randomly or sequentially and then dials them automatically—effectively excluding equipment that dials numbers from preexisting lists. 2020 WL 415811, at *2 (11th Cir. Jan. 27, 2020). This places the Eleventh Circuit squarely at odds with the Ninth Circuit’s expansive definition of ATDS in Marks v. Crunch San Diego.

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