On December 8, 2020, the Supreme Court heard oral argument to consider the TCPA’s definition of an “automatic telephone dialer system” (ATDS) in Facebook, Inc. v. Duguid, Noah et al., Dkt. 19-511. The Supreme Court is tasked with interpreting the scope of liability under the TCPA, and its resolution may bring much needed clarity to companies struggling with the meaning of that definition, particularly in light of a current split among circuits on the question and the D.C. Circuit’s 2018 decision, ACA International v. Federal Trade Commission striking down the FCC’s own interpretation. Because the TCPA imposes significant statutory penalties for calling or sending text messages using an ATDS to cellphones in violation of the act, clarification of the meaning of an ATDS may help companies mitigate their risks and curtail potential TCPA class action lawsuits.

Continue Reading Supreme Court Reviews Definition of Auto-Dialer Under TCPA To Clarify Circuit Split

A federal judge in Oregon, Hon. Michael H. Simon, has recently upheld a $925 million statutory damages award against health supplement maker ViSalus for its violation of the Telephone Consumer Protection Act (“TCPA”)—making this the largest TCPA damages award to date.

The underlying class action against ViSalus alleged the company placed nearly 2 million unsolicited robocalls nationwide to advertise its weight-loss and dietary products.  The class argued that the robocalls constituted unlawful telemarketing practices and violated the TCPA, and after a three-day trial in April of 2019, a jury agreed. Continue Reading $925M TCPA Robocall Award Upheld

The Supreme Court generally upheld the constitutionality of the Telephone Consumer Protection Act (TCPA) in Barr v. American Association of Political Consultants, Dkt. No. 19-631, issued on July 6, 2020.  Multiple stakeholders have been pressing on constitutionality of the TCPA, including advocates against “nuisance” robocalls, service providers weary of uncertain class action liability, and free speech advocates wanting less regulation.  The Supreme Court determined that only an exception to the TCPA permitting automated government debt collector calls was an unconstitutional restriction on free speech.  To remedy this violation, the Court rejected requests to find the entirety of the TCPA statute unconstitutional and instead affirmed the Fourth Circuit’s approach of severing of the offending exception from the statute.

The Supreme Court’s concerns about the governmental debt exception, however, could point to a vulnerability in other privacy statutes, such as the California Consumer Privacy Act, which exempts non-profits.  Going forward, privacy advocates will need to be particularly mindful of free speech concerns as privacy legislation grows. Continue Reading Supreme Court Upholds Constitutionality of the TCPA But Severs the Government Debt Carve-Out on First Amendment Grounds

Many of the key policy debates that we expected to happen in 2020 seemed to be essentially frozen for the year as we all responded to the horrors of COVID and the seismic political shifts across the globe. So what does this new year hold for us? We hope for a return to normalcy as vaccinations spread across the globe, a new Administration takes the reins in DC, and the UK continues to negotiate the terms of a new relationship with the EU. Here are some of key areas in privacy and data protection where we anticipate potential developments in 2021. Continue Reading 21 Privacy and Cybersecurity Issues for 2021

Even with states easing COVID-19 related restrictions, suggestions that social distancing could last through the summer (or even longer) have led many companies that traditionally rely on in-person promotional visits to consider other options. One obvious alternative is telephone or text marketing, but companies that are new to the practice should be aware of the numerous federal and state laws and regulations governing telemarketing, which impose significant fines or statutory damages for violations. In one notable example, Dish Network was assessed $280 million in penalties in an action brought by the FTC and state attorneys general for alleged violations of the Telemarketing Sales Rule (TSR) and related state laws, and in a separate class action, plaintiffs were awarded $61 million in statutory damages.

Both the federal government and all 50 states plus the District of Columbia have laws applicable to the use of telephones for marketing purposes. Some of the restrictions may also apply to non-marketing communications. This post provides a high-level overview of the rules applicable to the space; but before engaging in telemarketing activities, companies should be sure to review both federal and state laws to ensure their practices are fully compliant.

Continue Reading Companies Newly Engaged in Telemarketing Should Be Aware of Substantial Body of Federal and State Telemarketing Laws