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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

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We’ve been closely watching the evolution of telemarketing laws since the Supreme Court’s 2021 decision in Facebook v. Duguid, which held that most modern dialing systems are not autodialers—or “automated telephone dialing systems” under the Telephone Consumer Protection Act (TCPA).  The Facebook decision led to a flurry of legislative activity at both the state and federal levels. Florida and Oklahoma enacted state-level statutes that have been interpreted to cover modern dialing systems, and Georgia, Washington, Michigan and other states have considered similar legislation. At the federal level, a new bill was proposed in July 2022 that would have amended the TCPA to cover 21st century dialing technologies—not just those using a random or sequential number generator. The federal bill has not made any meaningful progress, but a recent request from FCC Chairwoman Jessica Rosenworcel may prompt the legislature to act.Continue Reading Game of Phones: Revisiting the Autodialer

In the wake of the Supreme Court’s 2021 decision in Facebook v. Duguid—which held that most smartphones and similar modern technology do not qualify as “automated telephone dialing systems,” under the Telephone Consumer Privacy Act (TCPA)—there has been a spike in state legislative activity aimed at strengthening local telemarketing laws. Florida’s Telephone Solicitation Act (FTSA) became the first state telemarketing law of its kind on July 1, 2021. The FTSA, which does not clearly define the types of automated technology covered by the statute, creates room for a broader interpretation of the types of devices that can qualify as regulated dialing technology. Oklahoma has now become the next state to enact such legislation, the Oklahoma Telephone Solicitation Act (OTSA), which largely mimics the FTSA and came into effect on November 1, 2022.Continue Reading Oklahoma’s New Restrictive Telemarketing Law: Could Other States Be Next?

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

Thursday, in a unanimous decision, the Supreme Court narrowed the potential scope of the Telephone Consumer Protection Act (“TCPA”), which has been fertile ground for plaintiffs’ attorneys seeking class-wide damages. Justice Sotomayor wrote the opinion in Facebook v. Duguid, which held that for telephone dialing equipment to constitute an “automatic telephone dialing system” (“ATDS”) under the TCPA, “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” The upshot of this distinction is that computer systems that simply store phone numbers, not generated randomly or sequentially, for later dialing are not an ATDS.
Continue Reading Supreme Court Narrows Potential Scope of the Telephone Consumer Protection Act

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