Category: TCPA

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.”

Nearly a year-and-a-half after oral argument on the ACA International v. FCC petition for review of the Federal Communications Commission’s 2015 Omnibus Order, the D.C. Circuit Court of Appeals issued its long-anticipated opinion last Friday, March 16th, in a 51-page decision authored by Judge Srinivasan. This article focuses on the D.C. Circuit’s handling of the issue of revocation of consent and its further implications for contracting parties addressing the same.

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.

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).

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).

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.

It has been 15 months since oral argument in the ACA’s appeal of the FCC’s 2015 Omnibus, and courts are starting to lose patience waiting for a decision by the D.C. Circuit. Last week, two district courts in California lifted stays previously granted based on the pendency of the ACA appeal.

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.

Dorsey’s TCPA team is already renowned for obtaining first-in-the-nation results. Adding to that pile, Dorsey aided GoSmith, Inc. this week in obtaining a ruling compelling arbitration under facts that have long escaped direct judicial review.

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…”

When a Defendant submits 89 call recordings demonstrating that the customer never once asked for calls to stop or suggested that the calls were unwanted, you’d think that would be enough to earn a summary judgment. Not so, says Judge Theodore D. Chuang of the United States District Court for the District of Maryland.