Author: Dorsey & Whitney

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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Autodialer Junction, What’s Your Function? D.C. Circuit Reverses FCC’s Internally Inconsistent Interpretations of ATDS Functionality

The D.C. Circuit’s reversal of the FCC’s pronouncements as to “the precise functions that a device must have capacity to perform for it to be considered an ATDS,” will likely prove to be the most consequential aspect of the court’s opinion in the ACA International appeal. ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 at *9 (D.C. Cir. Mar. 16, 2018) (“ACA Int’l”). The decision gives the FCC a blank slate to take a fresh look at this issue, and there is potential for big changes on the horizon.

D.C. Circuit Holds that FCC’s Interpretation of the Term “Capacity” is Invalid Because It Makes Nearly Every American a “TCPA-Violator-in-Waiting”

The D.C. Circuit has rejected the FCC’s “impermissibly expansive” interpretation of what constitutes an Automatic Telephone Dialing System (“ATDS”) under the TCPA. ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018) (“ACA Ruling”). Under Congress’s two-pronged definition of the term, an ATDS is equipment that: (1) “has the capacity”; (2) to function as an autodialer (i.e. “store or produce telephone numbers to be called, using a random or sequential number generator”). The ACA Ruling addresses the ATDS definition in two parts – first analyzing the meaning of the word “capacity” and then analyzing the functionalities required of an ATDS. This article will focus on the first of these two pieces of analysis – the meaning of the term “capacity.”

D.C. Circuit Court of Appeals Sets Aside FCC’s Definition of “Called Party” Under the TCPA—What Comes Next?

The TCPA makes it unlawful to make autodialed calls without the prior express consent of the “called party.” The statute does not define the term “called party,” leaving parties on both sides of the aisle scratching their collective heads as to what person or persons fall within this category. The definition of “called party” is particularly important because prior express consent of the called party is a complete defense to the TCPA. Thus, identifying the “called party” is a crucial component to any TCPA compliance regime and/or lawsuit. Unsurprisingly, this was one of the principal issues addressed by the D.C. Circuit in its recent blockbuster ACA Int’l v. FCC decision, with important implications for future litigants.

Your Definitive Guide to the ACA Int’l Ruling: The Top 10 Things Every TCPAlander Needs to Know Now

It’s here! It’s here! It’s finally here! At last, I no longer need to field the question of “When, oh when, is the D.C. Circuit going to rule on the ACA Int’l appeal of the FCC’s TCPA Omnibus ruling from 2015?” Now we know the answer: right in the middle of March Madness, of course. Forced, as I am, to look up from the basketball games, I now must face the biggest TCPA questions of all: What is the current state of the law respecting predictive dialers? Can we use contractual revocation provisions to full effect? Who is the called party? Is the TCPA constitutional? This is my definitive take on these and other TCPA issues arising from the big D.C. Circuit ruling of ACA Int’l v FCC, No. 15-1211, Doc. No. 1722606 (D.C. Cir. Mar. 16, 2018).

District Court Overrules Magistrate’s Order Compelling Prior Complaint Information and Related Data in TCPA Class Action

Quicken Loans scored a victory earlier this week when Judge Steven D. Merryday sustained its objection to a magistrate judge’s order compelling production of every shred of documentation in any form about every do-not-call request that Quicken received. See Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT, 2018 U.S. Dist. LEXIS 31346 (M.D. Fla. Feb. 27, 2018).

Ninth Circuit Lowers the Axe on Oft-Criticized TCPA Standing Opinion

The Ninth Circuit Court of Appeal overruled the district court’s dismissal of a TCPA case for lack of Article III standing yesterday in Elisa Romero v. Department Stores National Bank, No. 16-56265, 2018 WL 1079728 (9th Cir. Feb. 28, 2017). The district court ruling in Romero was an oft-cited and oft-criticized opinion that held, in essence, that the harm caused by phone calls must be attributable to the use of an ATDS to give rise to Article III standing. It also suggested that debt collection phone calls don’t really cause harm at all.

Church Provides No Sanctuary: Sixth Circuit’s FDCPA Decision May Breathe New Life into TCPA Spokeo Arguments

A number of Circuit Courts of Appeal have addressed Spokeo challenges to consumer protection statutes in the 646 days (and counting) since the U.S. Supreme Court handed down Spokeo, Inc. v. Robins in 2016. Most of those decisions have given the issue of standing short shrift, leapt to conclusions or—perhaps worst of all—shown a deep and unrelenting deference to Congressional legislative power in assessing Article III limits. The result has been languid opinions and squishy legal doctrine in the arena of standing, where only precision and intellectual rigor ought to prevail. Hagy v. Demers & Adams, No. 17-3696, 2018 U.S. App. LEXIS 3710 (6th Cir. Feb. 16, 2018) marks a stark departure from its soft-thinking predecessors, and represents the first intellectual tour-de-force of the post-Spokeo era.

Revocation by Lawsuit: Judge Rules Service of TCPA Complaint Instantly Revoked Consent

It has been a fairly quiet start to 2018 in TCPAland, but February has ushered in a series of cases worth talking about. The first is McMillion v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 17784 (N.D. Cal. Feb. 2, 2018). You may recall that back in September 2017, Judge Yvonne Gonzalez Rogers certified a number of skip trace classes in this case. Well, her latest ruling in McMillion is a veritable grab bag of TCPA wonders.

Bottles of Ink: Court Observes that FCC’s Recent “Regulatory Crusade” Has Only Made the TCPA Murkier

It should come as no surprise to readers of this blog that the TCPA is the subject of regular criticism by judges across the country. See e.g. Dominguez v. Yahoo!, Inc., No. 13-1887, 2017 U.S. Dist. LEXIS 11346, at *20 (E.D. Pa. Jan. 27, 2017) (calling the FCC’s 2015 Omnibus “a ‘mongrel’ – with no offense to dogs.”). The ambiguities in the FCC’s rulings on the TCPA’s exceptions for healthcare-related calls are the most recent subject of judicial critique of the TCPA.

Silver Lining Playbook: Ninth Circuit Reverses Retroactive Application of TCPA Amendment Limiting Liability for Calls Made to Collect on Government-Backed Debt

In 2015, Congress enacted an amendment to the TCPA that exempted calls made in an effort to collect upon federally-backed debt. The amendment seemed straightforward enough. By adding the word “except” to the statute, Congress clarified that the TCPA applies except where it doesn’t. And it doesn’t apply to calls regarding federally-backed debt. The end. The Ninth Circuit Court of Appeals had a different take, however. In Silver v. Pennsylvania Higher Education Assistance Agency, the Ninth Circuit reversed and remanded the district court’s opinion applying the amendment retroactively, reasoning: “This case involves a statutory personal injury claim that had accrued prior to the date Congress enacted the TCPA amendment at issue. Ninth Circuit law is clear that retroactively extinguishing a personal claim that has already accrued implicates the strong presumption against retroactivity…”