Faegre Drinker

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The Telephone Consumer Protection Act: Calling for a Re-Do

TCPA Blog contributors Laura Phillips, Justin Kay, and Marsha Indych will discuss the Telephone Consumer Protection Act at the Coalition of Higher Education Assistance Organizations (COHEAO) Annual Conference on January 28, 2019, in Washington, D.C.

With the D.C. Circuit’s decisions in ACA International and Bais Yaakov and the FCC’s December 2018 order kicking off the creation a national reassigned phone numbers database, businesses are understandably happy with the recent direction in TCPA litigation and regulations and optimistic that the FCC will soon issue an order addressing other issues presented in the ACA International decision, once the partial government shutdown ends. Nevertheless, litigation continues, and as discussed at our November conference (The TCPA in 2018: There and Back Again), significant challenges remain: the 9th Circuit’s decision in Marks, the potential for the Supreme Court to upend the regulatory landscape via PDR Network, and the political difficulties of amending the TCPA.  Laura, Justin, and Marsha will discuss these topics and more.

For more information about the conference, please visit the COHEAO website.

Supreme Court Could Set Boundaries on Scope of FCC Guidance

The Supreme Court granted certiorari in PDR Network LLC v. Carlton & Harris Chiropractic Inc., to determine whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the TCPA. Matt noted that the ruling is expected to have a “profound impact” on TCPA litigation going forward “because it will determine whether or not courts can give an independent interpretation of the statute” or if they have to defer to the FCC’s interpretation. Continue reading “Supreme Court Could Set Boundaries on Scope of FCC Guidance”

As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling

Reflecting the nearly universal sense by constituents that call spoofing and other illegal forms of robocalls are annoying and unwelcome, on November 15, a bipartisan team of United States senators, Senators Markey, Thune and Wicker, introduced a bill titled the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” also known as the TRACED Act. The bill is designed to provide the FCC and other federal agencies acting in concert with the FCC with additional tools to combat spoofing and other illegal robocalling operations by amending Section 227 of the Communications Act to provide for enhanced civil penalties for violation of TCPA rules. Specifically, the bill would provide the FCC going forward with forfeiture authority to assess civil penalties of up to $10,000 per illegal robocall violation and extend the current FCC statute of limitations to investigate TCPA violations from the current one year to three years. The bill also creates new criminal fines of up to $10,000 per violation that can be trebled if the activity was intentional. The FCC would have 270 days following enactment to develop implementing regulations. The bill does not introduce any changes to the current private right of action provisions of Section 227 of the Act. Continue reading “As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling”

High Court May Upend TCPA Litigation Landscape

TCPA Blog contributor Justin Kay is quoted in a Law360 article entitled “High Court May Upend TCPA Litigation Landscape” addressing the Supreme Court’s decision to grant the defendant’s petition for certiorari  in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.—a TCPA fax case. Continue reading “High Court May Upend TCPA Litigation Landscape”

The TCPA in 2018: There and Back Again

As a follow-up to our initial reminder to mark your calendars for our half-day conference on November 14, 2018, in Washington, D.C., we are pleased to share the agenda.

Distinguished panelists hailing from government, retail, finance, health, and technology will join Drinker Biddle attorneys for an afternoon of discussion about the past, present and future of the TCPA and related litigation and enforcement.

We hope to see you there!

Review the full agenda here.
Register for the program!

Allegations of Equipment’s Potential Functionalities Not Sufficient to Survive Motion to Dismiss after ACA Int’l

On July 12, 2018, the Northern District of Ohio dismissed a complaint that failed to “allege any facts that [the defendant] uses a system that has the ability to store or produce telephone numbers to be called using a random or sequential number generator.” Lord v. Kisling, Nestico & Redick, LLC, No. 1:17-CV-01739, 2018 WL 3391941, at *3 (N.D. Ohio July 12, 2018). It is the latest court to follow the lead of the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687, 692 (D.C. Cir. 2018), that vacated the FCC’s interpretation of automatic telephone dialing systems (“ATDS”). Continue reading “Allegations of Equipment’s Potential Functionalities Not Sufficient to Survive Motion to Dismiss after ACA Int’l”

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 “FCC Seeks Comments on Key Issues Post-ACA Int’l”

Industry Groups Urge FCC to Clarify ATDS After ACA Int’l

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”