Category - "Consent"

Say Goodnight, Facey: Twitter, Path File Amicus Brief in Ninth Circuit TCPA Appeal

The Los Angeles Lakers found allies recently in Twitter and Path, when the social media companies sided with the Lakers to oppose an appeal from a dismissal of a putative class action asserting TCPA claims based on allegedly unsolicited text messages.  See Emanuel v. The Los Angeles Lakers, Inc., No. 13-55678 (9th Cir.)

During a 2012 preseason game, the Lakers invited patrons to “TEXT your message to 525377” if they wanted to have a personal message displayed on the Staples Center jumbotron.  David Emanuel did just that, sending a text message that read: “I love you Facey.  Happy Date Night.”  He then received a text message from the team that advised him that the team had received, but might not display, his note:  “Thnx!  Txt as many times as you like.  Not all msgs go on screen.  Txt ALERTS for Lakers News alerts.  Msg&Data Rates May Apply.  Txt STOP to quit.  Txt INFO for info.”  (Plaintiff then texted “STOP” and received another text message confirming receipt of his request, which he does not claim violated the TCPA.)

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FCC Opportunities for TCPA Rule Revision or Interpretation

The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling.  Immediately upon the federal government’s reopening, two additional petitions were filed.  While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.

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New TCPA Rules Take Effect on October 16, 2013

The Telephone Consumer Protection Act of 1991 (“TCPA”)[1] places certain restrictions on telemarketing calls, text messages, and faxes.  It has long been a favorite of the plaintiffs’ bar because it provides for statutory damages of $500 to $1500 per violation,[2] which in the aggregate can lead to substantial windfalls for plaintiffs.  TCPA violations (even innocent ones) can place companies at significant risk and TCPA litigation has skyrocketed as a result.[3]

Last year, the Federal Communications Commission (“FCC”) added fuel to the fire by amending its TCPA rules and further restricting telemarketing calls.[4]  The most significant of those amendments – which narrow and eliminate key statutory exemptions – will take effect tomorrow, on October 16, 2013.

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Third Circuit Holds That Consumers Can Withdraw Consent

In a case of first impression in the courts of appeal, the Third Circuit recently expanded the rights of consumers under the TCPA, holding that consumers may revoke their consent to be called on their wireless phones and that there is no time limitation on when they may do so. Gager v. Dell Financial Services, LLC, — F.3d –, 2013 WL 4463305 (3d Cir. Aug. 22, 2013).

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