U.S. Senator John Thune (R-S.D.), Chairman of the Senate Committee on Commerce, Science, and Transportation, convened a full committee hearing yesterday titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.” Witnesses at the two-hour hearing included the Attorney General of Indiana and representatives of the U.S. Chamber Institute of Legal Reform, the National Consumer Law Center, and the American Association of Healthcare Administrative Management. Chairman Thune opened the hearing with the following observations: Continue reading “Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses”
Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases
On May 9, 2016, the Sixth Circuit reversed a decision of the Northern District of Ohio granting summary judgment to Defendant in a TCPA fax case. Siding & Insulation Co. v. Alco Vending, Inc., No. 15-3551. The district court had accepted Defendant’s argument that it could not be liable under the TCPA for sending the allegedly offending faxes because while it did retain an ad agency (B2B/Caroline Abraham, a combination known well to practitioners in this space) to transmit faxes advertising its services to consenting businesses, it had never authorized transmission of faxes to non-consenting businesses, including the Plaintiff. Finding that under federal common-law agency principles Defendant could not be held vicariously liable for sending the faxes because it neither authorized the transmission of the offending faxes, nor ratified the ad agency’s conduct, the district court entered summary judgment in favor of Defendant. Continue reading “Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases”
Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages
Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III. Continue reading “Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages”
FCC Proposes Rules to Effectuate the TCPA Exception in the Bipartisan Budget Act of 2015 Provisions for Federally-Held Debt
Last week, the FCC released a notice of proposed rulemaking (“NPRM”) detailing its proposals to implement the provisions of the 2015 Bipartisan Budget Act that allow greater flexibility under the TCPA for calls placed relating to federally-held debt. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Notice of Proposed Rulemaking (May 06, 2016). This Act specifically “excepts from the Telephone Consumer Protection Act’s consent requirement robocalls made solely to collect a debt owed to or guaranteed by the United States.” Id. at ¶ 1. The Act set a nine-month deadline for the FCC to adopt rules implementing this exception, which gives the agency until August to adopt these rules. With this NPRM, the FCC sought to “balance the importance of collecting debt owed to the United States and the consumer protections inherent in the TCPA.” Id. The FCC’s rulemaking proceeding will apply to calls and text messages. As has been the case with a number of TCPA matters over the last few years, the FCC Commissioners were deeply divided on the proposals contained in the NPRM. Continue reading “FCC Proposes Rules to Effectuate the TCPA Exception in the Bipartisan Budget Act of 2015 Provisions for Federally-Held Debt”
Supreme Court Issues Decision in Spokeo, Inc. v. Robins
This morning the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins, which vacates the Ninth Circuit’s decision and remands for further proceedings. We are reviewing the majority opinion from Justice Alito (in which Justices Roberts, Thomas, Breyer, and Kagan joined), the concurring opinion from Justice Thomas, and the dissenting opinion from Justice Ginsburg (in which Justice Sotomayor joined), and will report back shortly.
The TCPA As Great Uniter? Democrats and Tea Party Republicans Join Forces, File Suit Seeking To Have The TCPA Declared Unconstitutional
Friday afternoons typically see a high volume of notices of new TCPA complaints. Those complaints usually offer little variation: while the names of the parties and counsel sometimes change, they all typically name businesses as defendants and challenge their compliance with the TCPA. Friday, May 13th was no different, except in one key respect: one of those new complaints names Attorney General Loretta Lynch as the defendant and challenges the TCPA itself. Continue reading “The TCPA As Great Uniter? Democrats and Tea Party Republicans Join Forces, File Suit Seeking To Have The TCPA Declared Unconstitutional”
Freedom of Contract Appears Alive and Well in the Third Circuit
Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading “Freedom of Contract Appears Alive and Well in the Third Circuit”
Trump Campaign Faces Second, Similar Suit in Same Court
Following on the heels of Plaintiff Joshua Thorne’s TCPA suit, the Donald J. Trump campaign was hit with a second TCPA lawsuit in as many days. See Roberts v. Donald J. Trump For President, Inc., No. 16-4676 (N.D. Ill. Apr. 26, 2016). The Roberts Complaint concerns the same message (“Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.”) and has been assigned to the same judge (Judge John Z. Lee) as the Thorne Complaint. The Roberts Complaint, however, differs in a couple of key respects. Continue reading “Trump Campaign Faces Second, Similar Suit in Same Court”
Trump Campaign Sued In Federal Court in Illinois
Earlier this week, Illinois resident Joshua Thorne filed a purported class action against Donald J. Trump for President, Inc., in the Northern District of Illinois. See Thorne v. Donald J. Trump For President, Inc., No. 16-4603 (N.D. Ill. Apr. 25, 2016). The suit seeks statutory damages, attorneys’ fees, and injunctive relief for alleged TCPA violations. Thorne alleges that although he never provided his phone number to the Trump campaign, he recently received a text message from 88022 (an SMS short code leased by the Trump campaign) stating “Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.” Continue reading “Trump Campaign Sued In Federal Court in Illinois”
Currently Pending FCC Petitions in TCPA Matters
With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC. The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding. Continue reading “Currently Pending FCC Petitions in TCPA Matters”