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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As we previously explained, the TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express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 U.S. Court of Appeals for the D.C. Circuit on Friday issued a long-awaited ruling in a lawsuit challenging the Federal Communications Commission’s interpretations of key terms under the Telephone Consumer Protection Act of 1991 (“TCPA”), holding that the FCC in 2015 had adopted an unreasonably broad definition of the type of calling equipment subject to special restrictions under the TCPA — a definition so broad it would include any modern smartphone — and had failed to adequately justify its approach regarding liability for calls placed to cell phone numbers that have been reassigned to a new user.

The court upheld the FCC’s ruling that a party who has consented to receive calls may revoke that consent “through any reasonable means clearly expressing a desire to receive no further messages from the caller.”  The court also upheld the FCC’s decision to exempt from the TCPA’s consent requirements certain calls communicating urgent healthcare messages.

The D.C. Circuit’s unanimous decision addresses a consolidated set of petitions by various companies and trade associations — first filed in the summer and fall of 2015 and argued before the D.C. Circuit in 2016 — seeking review of a declaratory ruling released by the FCC in July 2015 (the “Omnibus Ruling”).  In the Omnibus Ruling, the FCC ruled on a total of 21 petitions seeking “clarification or other actions” regarding the TCPA, principally in connection with automated calls and text messages.

Petitioners sought court review of four aspects of the Omnibus Ruling:…
Continue Reading D.C. Circuit Rejects Portions of FCC Decision Interpreting Key TCPA Terms

Yesterday, the FCC released an Enforcement Advisory to remind political campaigns about their obligations under the Telephone Consumer Protection Act (“TCPA”).  The Advisory did not set forth any new rules for calls and texts; rather, it confirmed existing rules and reminded political campaigns that they are subject to them.

The Advisory first confirmed that prerecorded or autodialed calls to mobile phones are prohibited, except in cases of emergencies, federal debt collection, or with the prior express consent of the recipient.  The Advisory then summarized the requirements for prerecorded or autodialed calls to landline phones, including identification and line seizure requirements. …
Continue Reading FCC Releases TCPA Enforcement Advisory Directed to Political Campaigns

Last week, the Federal Communications Commission announced plans to fine Dialing Services, LLC, nearly $3 million for making illegal “robocalls” to cell phones. The FCC has specific rules for automatic telephone dialing systems, also known as “autodialers,” that have the capacity to produce, store, and dial telephone numbers using a random or sequential number generator. The Telephone Consumer Protection Act (“TCPA”) prohibits the transmission of robocalls to mobile phones except for (1) calls made for emergency purposes, or (2) calls made with the “prior express consent” of the call recipient. (In 2012, the FCC promulgated a rule to require “prior express written consent” for such calls that contain a “telemarketing” or “advertisement” component.) The FCC alleged that Dialing Services transmitted automated or prerecorded voice messages on behalf of political campaigns and candidates without the prior express consent of the call recipients. Neither the TCPA nor the FCC’s rules contains a general exception from the autodialer prohibition for political calls.

This is not the first time that Dialing Services has heard from federal regulators. In March of last year, the FCC issued a citation to Dialing Services for making millions of calls to cell phones during the 2012 election cycle without authorization. The citation required Dialing Services to certify within fifteen days that it had ceased making robocalls without permission. It also came with a clear warning from the FCC Enforcement Bureau that, “These citations set the stage for significant monetary penalties if violations continue,” including fines up to $16,000 per call. Finding that Dialing Services failed to comply with the requirements of the citation and continued its practices by making 184 additional calls, the FCC last week announced plans to fine Dialing Services $2,944,000 – the maximum penalty for those 184 calls.…

Continue Reading FCC Fines Company $2.9 Million for Political Robocalls to Cell Phones

Today, the Federal Communications Commission adopted new rules that strengthen its restrictions on autodialed or prerecorded telemarketing calls.  The FCC billed the new rules as an effort to maintain consistency with the Federal Trade Commission’s telemarketing sales rule, which also governs telemarketing calls, and to give consumers control over the calls that they receive.

Under…