Telephone Consumer Protection Act

By Ani Gevorkian

Last week, the U.S. District Court for the Southern District of California issued an opinion regarding the definition of  an “Automatic Telephone Dialing System” (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The opinion follows a small but growing number of cases holding that courts have their own ability to interpret the statutory definition of ATDS and need not follow the Federal Communication Commission’s interpretation of that term.

The case, Marks v. Crunch San Diego, involved a class action suit against gym-operator Crunch San Diego (“Crunch”) for its use of a third-party web-based platform to send promotional text messages to current and prospective member mobile phones.  The plaintiff claimed he had received three unwanted text messages from Crunch over the course of about a month, in violation of the TCPA.  The motion for summary judgment turned on the issue of whether the platform Crunch used could be classified as an ATDS.  The court held that it could not.…

Continue Reading Another Court Finds That an Automated SMS Platform is Not an ATDS

Last week, the FCC issued two TCPA rulings that shed further light on whether and under what circumstances an individual can provide “prior express consent”—or convey such consent—for another in the context of automated or prerecorded informational calls or text messages to mobile phones.  One of these rulings came in response to a Petition for Declaratory Ruling filed by the Cargo Airline Association (CAA), and the other came in response to a Petition for Declaratory Ruling filed by GroupMe, Inc./Skype Communications S.A.R.L. (GroupMe).  Coincidentally, the Eleventh Circuit issued its own opinion last week in Osorio v. State Farm Bank that touched on a similar issue.  A summary of each can be found after the jump.…

Continue Reading FCC and 11th Circuit Address “Prior Express Consent” by a Third Party Under the TCPA

Earlier today, the FCC placed on public notice two petitions requesting that the agency clarify or forbear from enforcing certain aspects of its new TCPA regulations that went into effect on October 16, 2013.  Those regulations, which we summarized here, created, among other things, a new “prior express written consent” requirement for the transmission…

Last week, I spoke on a panel at the IAPP Privacy Academy about upcoming changes to FCC regulations governing the “prior express consent” requirement for, among other things, autodialed promotional text message and prerecorded call programs under the Telephone Consumer Protection Act (TCPA).  These changes will take effect next week, on October 16, 2013.  Some…