Today, the Supreme Court issued its decision in Facebook v. Duguid, adopting a narrow interpretation of a key definitional term in the Telephone Consumer Protection Act (TCPA) and resolving the circuit split we previously described here and here.

In effect, the Supreme Court’s opinion means that to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device must use a random or sequential number generator; a device that calls a prescribed set of telephone numbers without using such a number generator would stand outside that definition and thus not be regulated by the TCPA.
Continue Reading Supreme Court Narrows Meaning of TCPA Autodialer Definition

On December 30, 2020, the Federal Communications Commission (“FCC”) released a Report and Order (“Order”) that imposed certain new restrictions on nonmarketing prerecorded calls to residential lines.  The action was in response to Congress’s mandate in the TRACED Act that the FCC reevaluate certain exemptions the agency previously granted regarding the consent requirements for prerecorded calls under the Telephone Consumer Protection Act (“TCPA”).
Continue Reading FCC Imposes New Requirements on Nonmarketing Prerecorded Calls to Residential Lines

Last week, an Ohio district court found that violations of the Telephone Consumer Protection Act (“TCPA”) occurring between 2015 and July 2020 cannot be enforced because the law was unconstitutional at the time.  The case is captioned Lindenbaum v. Realgy, LLC, No. 19-CV-02862 (N.D. Ohio), and the opinion builds on an earlier decision from a Louisiana district court that reached a similar conclusion in Creasy v. Charter Communications Inc., No. 20-CV-01199 (E.D. La.).
Continue Reading Courts Find TCPA Unenforceable for Acts Prior to July 2020

Last week, the Federal Communications Commission (FCC) issued a notice of proposed rulemaking (NPRM) seeking comment on a proposal to review and potentially revise a number of existing exemptions that the FCC has adopted with respect to certain Telephone Consumer Protection Act (TCPA) requirements.  The FCC’s review could end up narrowing or eliminating some of these longstanding exemptions, imposing consent requirements or other obligations that today are not required for certain kinds of calls and texts.

Continue Reading FCC Reevaluating Certain TCPA Compliance Exemptions

Today, the Supreme Court issued its decision in Barr v. American Association of Political Consultants, which addressed the constitutionality of the Telephone Consumer Protection Act (TCPA).  Although the Court splintered in its reasoning—producing four separate opinions—the justices nevertheless coalesced around two core conclusions: (1) the TCPA’s exception for government debt collection calls is unconstitutional, and (2) the exception can be severed from the rest of the TCPA.  Six justices determined that the TCPA’s government-debt exception violates the First Amendment, and seven justices concluded that the exception is severable from the rest of the statute.  The end result is that the government-debt exception is invalid but the rest of the TCPA—including its general prohibition on automated calls and text messages to mobile numbers—remains intact.  The narrow scope of this ruling suggests that it may have limited practical effect for most parties.

As we previously explained, the TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express consent (the ATDS prohibition).  In 2015, Congress amended the TCPA to exempt from the ATDS prohibition calls made to collect a debt owed to the United States.  The question before the Supreme Court was whether the government-debt exception violates the First Amendment and, if so, whether the proper remedy is to sever the exception—leaving intact the rest of the TCPA—or invalidate the entire ATDS prohibition.
Continue Reading Supreme Court Invalidates TCPA Government-Debt Exception

Earlier this week, the Federal Communications Commission’s (FCC’s) Consumer and Government Affairs Bureau released a Declaratory Ruling clarifying the agency’s interpretation of the “Automatic Telephone Dialing System” (an “autodialer” or “ATDS”) definition in the Telephone Consumer Protection (TCPA).  The Ruling clarified that, in the context of a call or text message platform, the definition does not turn on whether the platform is used by others to transmit a large volume of calls or text messages; instead, the relevant inquiry is whether, in this context, the platform is capable of transmitting calls or text messages without a user manually dialing each such call or text message.

The Declaratory Ruling was issued in response to a Petition filed by the P2P Alliance  seeking confirmation that its text messaging platform is not an autodialer and therefore not subject to the TCPA’s ATDS-related consent requirements.  These requirements generally prohibit using an ATDS to call or text a mobile number without the recipient’s consent.  The Petition stated that the text messaging platform at issue required users of the platform “to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time.”  The Petition also stated that recipients generally would provide their consent to receive such messages by providing their mobile numbers to the platform’s users.
Continue Reading FCC Issues Two TCPA Declaratory Rulings, One Clarifying Autodialer Definition

Yesterday, the Supreme Court heard oral argument (by telephone) in Barr v. American Association of Political Consultants, a case that centers on the constitutionality of the Telephone Consumer Protection Act (TCPA), and, more specifically, the prohibition on transmitting automated calls or texts to mobile telephone numbers without prior express consent.  Given the litigious environment surrounding the TCPA, the case has important potential implications for businesses that communicate with consumers in this manner.  A transcript of the argument is available here, and a recording is available here.
Continue Reading Supreme Court Hears Argument Regarding Constitutionality of TCPA

The Eleventh Circuit has issued a unanimous decision in Medley v. Dish Network, LLC, holding that the Telephone Consumer Protection Act (TCPA) does not permit consumers to unilaterally revoke their consent to receive automated calls or texts, if that consent is given in a bargained-for contract.  The decision could have important implications for businesses that rely on consent to send consumers automated calls and texts.
Continue Reading Eleventh Circuit Holds that TCPA Consent Revocation is Limited When Given as Part of a Bargained-For Contract

With the adoption of two recent orders, the Federal Communications Commission (“FCC”) continues to implement the TRACED Act.  In the first of these orders, the FCC established a deadline by which certain voice services provides must adopt and implement the SHAKEN/STIR call authentication framework.  In the second of these orders, the FCC established the registration process for an industry “traceback” consortium.  These actions build on the FCC’s prior implementation efforts, which we discussed here and here.
Continue Reading FCC Continues Implementation of TRACED Act with SHAKEN/STIR Mandate and Industry Traceback Consortium