Telephone Consumer Protection Act (TCPA)

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As the cherry blossoms prepare to bloom in Washington, D.C., our thoughts turn toward wondering when the D.C. Circuit will hand down its ruling in ACA International, et al v. FCC (Case No. 15-1211). This case, you will recall, is the consolidation of a number of appeals challenging the July 10, 2015, Order in which the FCC gave a very expansive reading to a number of provisions in the Telephone Consumer Protection Act (TCPA), long a thorn in the sides of businesses attempting to communicate with their customers by phone or text. Most notably, the Order provided a definition of an Automatic Telephone Dialing System (ATDS) that many feel went way beyond the statutory language the Order was purporting to interpret. Moreover, the Order afforded little satisfaction to businesses mistakenly dialing reassigned numbers. Our previous blog posts analyzing the Order and the Appeal predicted that the D.C. Circuit would most likely issue its decision in spring 2017.

And now, spring has sprung, the administration has changed, and so, too, has the chairman of the FCC. Chairman Wheeler, sometimes criticized for interpreting the law liberally to accomplish policy goals, is gone, and in his place is Ajit Pai, a commissioner in the Wheeler era, and now elevated to chair by President Trump. In summer 2015, Mr. Pai was one of two dissenters in the ACA Order; the other, Michael O’Reilly, remains a commissioner under Chairman Pai. Additionally, two of the three “yes” votes in ACA are now gone, with only Commissioner Clyburn still at the Agency, and the president seems in no hurry to fill the vacancies. In any event, filling those vacancies would likely not affect the current balance of power at the Commission.
Continue Reading Recent Open Meeting Foreshadows FCC Commissioners’ Views if ACA Decision Is Remanded

Perturbed by two allegedly unwanted faxes, Arnold Chapman brought a putative class action under the Telephone Consumer Protection Act (“TCPA”). For himself, he sought the most the statute could provide – $3,000, an injunction, and costs. ($3,000 represents $500 in statutory damages for each of the two faxes, trebled for an allegedly knowing or wilful violation.) The defendant offered Chapman $3,002, and the entry of an injunction, and costs. Chapman let the offer expire without accepting it. The District Court dismissed the case as moot.

Chapman appealed, and late last week, the Seventh Circuit reversed the lower court ruling. In Arnold Chapman v. First Index, Inc., the Seventh Circuit held that an expired offer of judgment does not moot an individual plaintiff’s claims. In so ruling, the panel reversed circuit precedent and aligned itself with the Second, Ninth, and Eleventh Circuits on the issue.…

Continue Reading What Do You Get for the Plaintiff Who Has Everything? Maybe a Class Action, Ruled The Seventh Circuit

On November 24, the FCC released a wide-ranging public notice seeking comment on a September 9, 2014, letter from the National Association of Attorneys General (NAAG), purportedly written “on behalf of the millions of Americans regularly receiving unwanted and harassing telemarketing calls.” The letter, signed by a bipartisan group of 39 AGs led by Chris…

On October 30, 2014, the FCC issued a much-anticipated ruling (“FCC Order”) resolving several petitions seeking clarification of the opt-out notice requirement regarding advertisements faxed to consumers, contained in the Telephone Consumer Protection Act, section 227 of the Communications Act (“TCPA”). The FCC ruled that all such faxes, even those sent with the recipient’s prior…

This post was written by Raymond Y. Kim and Jack J. Gindi.

On October 23, 2014, the U.S. District Court for the Southern District of California further clarified the federal Telephone Consumer Protection Act’s (“TCPA”) definition of “automatic telephone dialing system” (“ATDS”) and granted summary judgment for the defendant on the grounds that it did…

Tuesday evening, the Federal Communication Bar Association held a seminar in Washington designed to help practitioners make some sense of the ever-expanding number of class actions that have been brought under the Telephone Consumer Protection Act (“TCPA”) by often over-zealous plaintiffs’ attorneys; the inconsistent decisions that have been rendered by the courts; and the scores…

This post was written by Amy S. Mushahwar.

PLEASE NOTE that the amendments to the Federal Communications Commission’s (FCC) regulations implementing the Telephone Consumer Protection Act (TCPA) published by the FCC June 11, 2012, and relating, most significantly, to the necessity of obtaining written consent before placing some autodialed calls or sending some prerecorded…