On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers.  The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent.  Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns.  Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision.  While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed.  Now the Supreme Court is poised (potentially) to resolve that dispute.
Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA

The Virginia Governor recently signed into law amendments to the Virginia Telephone Privacy Protection Act that significantly increase the exposure of businesses that place marketing calls or text messages to Virginia residents.

The amendments take effect July 1, 2020, and address four topics: (1) the definition of a “telephone solicitation call,” (2) caller identification, (3)

TCPA In Jeopardy? US Supreme Court Reviews ConstitutionalityOn Wednesday, May 6th, the U.S. Supreme Court will hear oral argument in a case concerning the scope of the Telephone Consumer Protection Act (“TCPA”) that is of great interest to businesses and communications industry practitioners. In William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020) (“Barr”) the Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the 1991 TCPA. The 2015 amendment exempts calls from the TCPA’s autodialer restriction, if the call relates to the collection of debts guaranteed by the U.S. government. On Wednesday, the Supreme Court will consider if: 1) the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment; and 2) whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

TCPA litigation has largely focused on the autodialer restriction over the past decade.  In 2015, the Federal Communications Commission (“FCC”) adopted an expansive interpretation of the restriction, which the U.S. Court of Appeals vacated and remanded in 2018. While the industry has waited for the FCC to offer further guidance, entities making calls and sending texts have navigated an environment plagued by uncertainty. Several courts of appeals have adopted conflicting interpretations of the autodialer provision. Meanwhile, the FCC could offer its interpretation at any time, throwing the issue into further litigation in all probability.  In this environment, the Supreme Court agreed to hear the constitutionality of one TCPA exemption in the Barr case. Many are hoping for a decision that goes beyond the 2015 amendment and offers definitive guidance on the autodialer provision’s scope. This post discusses what to expect – and what to watch for – in the Supreme Court’s oral argument this week.


Continue Reading TCPA In Jeopardy? US Supreme Court Reviews Constitutionality

Ad Law Access PodcastRecently the Second Circuit Court of Appeals issued an opinion providing its definition of an automatic telephone dialing system (ATDS) under the TCPA. That sets up a severe split of the Circuits with the Second and Ninth Circuits taking a broad approach while the Third, Seventh, and Eleventh Circuits have charted a narrower standard for

The FTC and FCC have taken a number of actions to stem unlawful robocalls generally and, during the COVID-19 pandemic, to stem harmful and deceptive calls that seek to exploit the COVID-19 crisis. Even amid the backdrop of their long-standing commitment, the agencies’ most recent action stands out as an aggressive new approach to unlawful

The COVID-19 pandemic continues to have far-reaching effects on businesses and consumers everywhere.  While many states are taking broadly consistent approaches on certain issues (e.g., price gouging, non-essential business closures), one area where we’ve seen significant divergence involves regulation of collection efforts – both by first party creditors and debt collectors.  In

Over the past few weeks, my colleagues have discussed some of the considerations for marketing around COVID-19, including claim substantiation and price gouging. In the next few posts, we are going to take a deeper dive into a few topics, beginning with telemarketing. Here are some points to keep in mind:

States of Emergency

In Glasser v. Hilton Grand Vacations Company, LLC, the Eleventh Circuit addressed a pair of appeals that presented the question of the appropriate definition of an automatic telephone dialing system (“ATDS”) as set forth in the Telephone Consumer Protection Act (“TCPA”).  In answering that question, the Eleventh Circuit expanded upon the Third Circuit’s ruling

On another new episode of the Ad Law Access PodcastAlysa Hutnik starts at the beginning and explains a few of the issues you need to think about before starting a telemarketing texting campaign.

For additional information see the Ad Law Access blog posts:

The current and future definition of what qualifies as an automatic telephone dialing system (ATDS or autodialer) remains a hotly debated and evaluated issue for every company placing calls and texts, or designing dialer technology, as well as the litigants and jurists already mired in litigation under the Telephone Consumer Protection Act (TCPA).  Last year, the D.C. Circuit struck down the FCC’s ATDS definition in ACA International v. FCC, Case No. 15-1211 (D.C. Cir. 2019).  Courts since have diverged in approaches on interpreting the ATDS term.  See, e.g., prior discussions of Marks and Dominguez.  All eyes thus remain fixed on the FCC for clarification.

In this post, we revisit the relevant details of the Court’s decision in ACA International, and prior statements of FCC Chairman Ajit Pai concerning the ATDS definition to assess how history may be a guide to how the FCC approaches this issue.


Continue Reading Taking Stock of the TCPA in 2019: What is an “Autodialer”?