Search results for: tcpa

Last week, a group of U.S. House of Representatives Democrats introduced the RoboText Scam Prevention Act (“RSPA”). If passed, the bill would amend the Telephone Consumer Protection Act (“TCPA”). As predicted in the wake of the Supreme Court’s decision in Facebook v. Duguid, the RSPA is Congress’s attempt to clarify the TCPA by proposing modernizations that would address 21st century dialing technologies that were not in place when the law was first passed, but the bill’s broad definitions could create more confusion than clarity if it is passed without further changes.

Continue Reading Newly-Proposed TCPA Amendment Could Lead to Expansive Coverage

It has been eight months since the Supreme Court of the United States decided, in Facebook v. Duguid, that the federal Telephone Consumer Protection Act’s (TCPA) outdated definition of an automated telephone dialing system (ATDS or autodialer) did not cover devices—like most modern phones—which can store numbers that are not randomized. This decision resolved a long-standing circuit split over how to interpret the TCPA, but it has not led to the clarity that many companies desired.

While courts have started applying the narrowed ATDS definition under Duguid, companies engaged in telemarketing are not yet in the clear as many had initially thought in the immediate aftermath of Duguid. A number of trends have emerged that give new teeth to TCPA-like claims, including a spike in cases at the state level, novel legal theories, and a focus on other aspects of the TCPA. Moving into 2022, we expect a continued evolution in complaints brought under state telemarketing laws, and we might also see legislation or FCC guidance intended to update the TCPA so that it applies to modern dialing technologies.

Continue Reading The TCPA, State Analogues, and the Future of Telemarketing Litigation

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

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Although 2024 saw several states enact comprehensive privacy legislation, another year is nearly gone, and we still do not have a comprehensive federal privacy law to resolve the rapidly evolving patchworks of state laws. Despite the lack of comprehensive privacy legislation, privacy and cybersecurity were hot button issues across key federal agencies, such as the FTC and FCC, with significant enforcement activity throughout the year. In this edition of our Twelve Days of Data series, we highlight key developments across a few key federal agencies.

To no surprise, the Federal Trade Commission (FTC) was intensely focused on privacy and cybersecurity throughout 2024. We also saw important activity out of the Federal Communications Commission (FCC), which, among other things, issued guidance regarding the Telephone Consumer Protection Act (TCPA).

Continue Reading Key Privacy and Cybersecurity Watchdogs Make Their Naughty Lists
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On April 4, 2024, the Federal Communications Commission (“FCC”) adopted new rules updating the Telephone Consumer Protection Act’s (“TCPA”) requirements regarding a consumer’s ability to revoke consent to receive calls and messages (collectively “messages”). Generally speaking, the TCPA in part restricts messages sent using an automated telephone dialing system absent the organization obtaining the necessary prior consent from the consumer. Importantly, the rules (1) further clarify the ways in which a consumer may revoke consent; (2) require that organizations honor requests within a reasonable time; and (3) clarify the process by which organizations can confirm the scope of a consumer’s request to revoke consent to receive further messages. We unpack these key developments in more detail below.

Continue Reading FCC Provides Long-Awaited Clarification on Revocation of Consent

The FCC has issued a declaratory ruling, employing the protection of the Telephone Consumer Protection Act (TCPA) to outlaw robocalls that use AI-generated voices. The Commission’s unanimous decision was spurred by public fallout from the doctored audio message of a purported President Biden urging voters in New Hampshire not to vote in the state’s Democratic primary last month. The announcement makes clear that the potential for malicious actors to use AI to deceive voters and subvert democratic processes is on the government’s top-of-mind this election year. This is not the first time that the TCPA has been used to protect the public from election interference, but rather than go after individual actors for individual instances of election interference as it has in the past, this decision creates a much wider blanket ban on AI-generated voices in robocalls which will cover election-related AI-generated calls among others.

Continue Reading 2024 Is Set To Be Democracy and Deepfakes’ Biggest Year. Is U.S. Legislation …Ready For It?

What has often been considered to be one of the most heavily litigated privacy laws over the last decade, the Telephone Consumer Protection Act’s (“TCPA”) applicability (or lack thereof) to many modern text message dialing technologies has been significantly curtailed as a result of the United States Supreme Court’s narrow definition of what constitutes an automatic telephone dialing system (“ATDS”) in Facebook v Duguid. However, this is still a very active area, and we expect 2024 to reshape the contours of TCPA litigation. In this post, we provide a summary of noteworthy developments in federal and state telemarketing privacy laws as well as our predictions on what may be around the corner in 2024.

Continue Reading You Better Watch Out, You Better Not Cry…Telemarketing Changes Are Coming to Town in 2024

On May 25, 2023 Gov. Ron DeSantis signed into law an amendment (Amendment) to the Florida Telephone Solicitation Act (FTSA), clarifying ambiguities and corralling what has been a runaway gust of telemarketing litigation since the passage of the FTSA almost two years ago. Under the FTSA, an individual could bring suit against a telemarketer for using an automated telephone dialing system (ATDS) that simply selected phone numbers or dialed telephone numbers to place calls or send messages without prior consent. In other words, even if the caller dialed the phone number manually, the call would still be subject to the FTSA if the number was automatically selected using software. This Amendment clarifies that suit can be brought only if the ATDS both selects and dials the phone number. While still not specifically defining what constitutes an ATDS, this two-part test should stem the flow of FTSA litigation by greatly narrowing the present standard.

Continue Reading Sunshine State Clarifies Telemarketing Regulation, Quieting Storm of Litigation Blown In by Florida Telephone Solicitation Act