On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading “Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order”
Michael Daly
Articles by Michael Daly:
The Big Chill: How The FCC’s Reading Of The TCPA Violates The First Amendment And Demands The Impossible
As the defense bar’s preeminent public resource on TCPA litigation and regulation, TCPA Blog has been invited to contribute a regular column to Law360. In the first such column, Bradley Andreozzi, Michael Daly, and Justin Kay discuss how the FCC’s interpretations of the TCPA violate the First Amendment rights. They write:
For an agency charged with regulating communications, the Federal Communications Commission has shown itself to be remarkably indifferent to First Amendment rights. In its recent brief in the consolidated appeal from its July 2015 omnibus ruling on the Telephone Consumer Protection Act, the FCC blandly assured the D.C. Circuit that “[e]very court” has held that the TCPA’s restrictions “easily pass muster under the First Amendment.” FCC Brief at 73-74. But it all but ignored that, rather than “directly challenge the TCPA’s constitutionality,” the petitioners in that appeal challenge the FCC’s “interpretations of the statute.” Id. at 72-73. On that issue, the D.C. Circuit will be writing on a clean slate, and the First Amendment challenges are serious.
They then highlight three serious First Amendment concerns, specifically that the FCC’s: (1) healthcare exemption restricts necessary speech; (2) recycled numbers ruling demands the impossible; and (3) ATDS interpretation is unconstitutionally vague.
Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling
On January 22, 2016, two amicus briefs were filed in support of the FCC’s July 10, 2015 Omnibus Ruling in the consolidated appeal before the District of Columbia Circuit. One brief was filed by the National Consumer Law Center, National Association of Consumer Advocates, Consumers Union, AARP, Consumer Federation of America, and MFY Legal Services (collectively the “NCLC Amici”). The other was filed by the Electronic Privacy Information Center (“EPIC”), Constitutional Alliance, Consumer Watchdog, Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times (collectively the “EPIC Amici”). The main arguments of each brief are summarized below. Continue reading “Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling”
Supreme Court Rules that Unaccepted Offer Does Not Moot a Claim But Leaves Door Open to Mooting Through Actual Payment
On January 20, 2016, the Supreme Court issued a long-awaited ruling in Campbell-Ewald Co. v. Gomez. Although their reasoning differed, six of the Justices held that an unaccepted offer of complete relief does not in and of itself deprive a court of Article III jurisdiction by mooting a plaintiff’s claim. Continue reading “Supreme Court Rules that Unaccepted Offer Does Not Moot a Claim But Leaves Door Open to Mooting Through Actual Payment”
FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling
On Friday, January 15, 2016, the Federal Communications Commission filed its response to the arguments of the joint Petitioners in the consolidated appeal from its July 10, 2015 Omnibus Ruling. The Commission’s brief addresses the scope of its statutory authority, the definition of an “automatic telephone dialing system” (“ATDS”), the meaning of “called party” and the potential liability for calls to recycled numbers, the ability to revoke consent, healthcare-related calls and the emergency purpose exception, and First Amendment challenges to the Commission’s interpretations of the statute. Its main arguments are summarized below.
Continue reading “FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling”
Court Finds Fault With Preliminary Approval Motion, Directs Plaintiff to Supplement Record
The Southern District of Alabama recently denied a plaintiff’s motion for preliminary approval of a proposed classwide settlement of TCPA claims. See Bennett v. Boyd Biloxi, LLC, No. 14-0330-WS-M, 2015 U.S. Dist. LEXIS 163987 (S.D. Ala. Dec. 7, 2015). The plaintiff claims that he and some 70,000 other people received unlawful telemarketing calls promoting the defendant’s casino, resort, and spa. Describing the plaintiff’s motion as a “somewhat pro forma” submission that did not “come close to bearing his burden of persuading the Court to certify the proposed settlement class,” the court sent him back to the drawing board “to research and effectively present the legal argument . . . needed to support certification.”
NACDS Files Amicus Brief in Support of Petitioner Rite Aid in Consolidated Appeal of FCC’s TCPA Order
On December 2nd, the National Association of Chain Drug Stores, Inc. (“NACDS”) submitted an amicus brief in support of member organization and petitioner Rite Aid in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). We reported earlier that Rite Aid filed its opening brief focusing on the healthcare-related portions of the Order on November 25th, the same day the joint petitioners filed their opening brief. The NACDS notes that it also supports the joint petitioners’ arguments related to reassigned numbers, automatic telephone dialing systems, and revocation of consent but submitted a separate amicus brief to address the impact of the Order on critical patient healthcare notifications. Brief at 2 n.1.
Joint Petitioners File Initial Brief in Consolidated Appeal of FCC’s TCPA Order
On November 25th, joint petitioners ACA International, Sirius XM, PACE, salesforce.com, ExactTarget, Consumer Bankers Association, U.S. Chamber of Commerce, Vibes Media, and Portfolio Recovery Associates (“Petitioners”), filed their opening brief in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir. Nov. 25, 2015). Rite Aid filed a separate opening brief that we will address in a subsequent post
Continue reading “Joint Petitioners File Initial Brief in Consolidated Appeal of FCC’s TCPA Order”
Supreme Court Hears Oral Argument in Tyson Foods, Inc. v. Bouaphakeo
On Tuesday the Supreme Court heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, which concerns (among other things) whether courts can certify classes that are defined in a way that would include people who do not have Article III standing. For those who were unable to attend the argument, a transcription of the argument is available here.
Supreme Court Hears Oral Argument in Spokeo, Inc. v. Robins
Earlier this week the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, which concerns whether Congress can confer Article III standing on a plaintiff who alleges a violation of a statute (i.e., an injury in law) but no resulting harm (i.e., an injury in fact). For those who were unable to attend the argument, recordings and transcriptions of the argument are available here and here.