One of the central issues that was before the D.C. Circuit in ACA International v. FCC was whether the term “called party” refers to the intended or the unintended recipient of a call. In its July 10, 2015 Declaratory Ruling and Order, the FCC interpreted the term to be the current “subscriber” on the account to which the phone number is assigned or “the non-subscriber customary user of the phone.” Under this interpretation, businesses that try in good faith to contact consumers who have consented to receive such calls face significant liability with minimal recourse, when those calls reach someone else. The D.C. Circuit set aside the FCC’s “treatment of reassigned numbers as whole,” which includes its interpretation of called party. In light of the D.C. Circuit’s ruling, the FCC is currently seeking comment on critical TCPA issues with an eye toward taking a much broader view of the TCPA landscape than it did in its 2015 TCPA Order. In the meantime, one business involved in a TCPA action is seeking indemnification from the consumer it intended to reach in making the calls that form the basis of the TCPA action against it. Continue reading “TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls”
Topic: 2015 Declaratory Ruling
Comments Filed in Reassigned Numbers and Post-ACA International Proceedings
Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading “Comments Filed in Reassigned Numbers and Post-ACA International Proceedings”
District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC
The District of Arizona recently became one of the first courts in the country to address the definition of an ATDS in light of the D.C. Circuit’s blockbuster ruling in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). Our previous client alert regarding ACA predicted that the decision would provide TCPA defendants with increased opportunities to defeat claims based on plaintiffs’ failure to prove the use of an ATDS. The Herrick v. GoDaddy.com, LLC case exemplifies how defendants can use the ACA decision to combat TCPA claims on this issue and hopefully foreshadows an emerging wave of favorable decisions. Continue reading “District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC”
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”
FCC’s Second Further Notice of Proposed Rulemaking on Reassigned Numbers Published in Federal Register; Comment Clock Begins
On March 22, 2018, the FCC adopted a Second Further Notice of Proposed Rulemaking (FNPRM) on reassigned numbers. On April 23, 2018, the FNPRM was published in the Federal Register, triggering the commenting period deadlines. Comments on the FNPRM must be submitted by June 7, and reply comments must be submitted by July 9, 2018. Continue reading “FCC’s Second Further Notice of Proposed Rulemaking on Reassigned Numbers Published in Federal Register; Comment Clock Begins”
Worth the Wait! D.C. Circuit Vacates Key Portions of FCC’s July 2015 TCPA Order
At the Federal Communications Bar Association’s TCPA symposium in D.C. last month, panelists from the Federal Communications Commission (FCC) and private practice expressed uncertainty regarding when the D.C. Circuit would issue its much-anticipated ruling in the appeal of the FCC’s July 2015 Declaratory Ruling and Order (the “2015 Order”). It turns out that that day is today. And the ruling was well worth the wait. Continue reading “Worth the Wait! D.C. Circuit Vacates Key Portions of FCC’s July 2015 TCPA Order”
Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment
A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading “Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment”
As Contemplated By the FCC?: TCPA Defendant Seeks Indemnification From Consumer Who Provided Plaintiff’s Mobile Number
One of the central issues in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order is whether the term “called party” refers to the intended or actual recipient of the call. The FCC’s Order interpreted the term “called party” to be the “subscriber” or “non-subscriber customary user” of the phone that was called, regardless of whether the caller meant to call someone else. Under this interpretation, businesses that in good faith attempt to contact consumers who have consented to receive such calls face significant liability when those calls reach someone else instead. Continue reading “As Contemplated By the FCC?: TCPA Defendant Seeks Indemnification From Consumer Who Provided Plaintiff’s Mobile Number”
Contracts 101: Second Circuit Holds That Black Letter Contract Law Precludes Revocation of Consent Claims under the TCPA
The explosion of litigation under the Telephone Consumer Protection Act (“TCPA”) has continued through the second quarter of 2017. Businesses have been anxiously awaiting a ruling from the D.C. Circuit in the appeal of the Federal Communications Commission’s (“FCC”) July 2015 Declaratory Ruling and Order as well as reforms from the FCC itself. As the wait continues, promising developments have been emerging from the courts. On June 22, 2017, the Second Circuit—in a common sense and practical opinion in Reyes v. Lincoln Auto. Fin. Servs., No. 16-2104 (2d Cir.)—acknowledged that contract is king and that a party cannot unilaterally modify its terms. In affirming summary judgment in favor of the defendant, the court cited the Restatement (Second) of Contracts and explained that “[i]t is black letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.” Its opinion in this TCPA action has significant implications for businesses that have standard contracts with their customers. And it is a welcome step in the right direction. Continue reading “Contracts 101: Second Circuit Holds That Black Letter Contract Law Precludes Revocation of Consent Claims under the TCPA”