Telephone Consumer Protection Act (TCPA)

The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act. Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written consent for automated or prerecorded calls or texts. If the bill becomes law, it will go into effect on July 1, 2021.

Under the existing Florida Do Not Call Act, callers are prohibited from making telephonic sales calls using “an automated system for the selection or dialing of telephone numbers” unless (i) the call is in response to a consumer-initiated call, (ii) the numbers are unlisted or have been scrubbed against the state Do Not Call list, or (iii) the calls relate to goods or services previously ordered or purchased. This Act does not include exemptions from the definition of “telephonic sales calls.” The Florida Telemarketing Act determines licensure, call timing, identification, and recordkeeping requirements, among others, and includes a number of exemptions.
Continue Reading Florida Takes Page Out of TCPA’s Book with New Legislation

Last week, the Seventh Circuit reminded advertisers of the narrowing availability of insurance coverage for Telephone Consumer Protection Act (TCPA) claims.  In Mesa Laboratories v. Federal Insurance Co., the court rejected a fax marketer’s bid to make its insurer pay for its defense and settlement of an underlying unsolicited fax lawsuit.  This decision underscores the insurance industry’s recent trend of limiting TCPA coverage under general policy forms and requiring policyholders to seek out and purchase specific coverage for those types of claims.

At one time, insurance policies did not say whether they provided coverage for claims brought under the TCPA.  When the statute was passed in 1991, many policyholders were able to secure coverage for TCPA claims under the “personal and advertising injury” portions of their general liability insurance policies, which typically cover any “oral or written publication that violates a person’s right to privacy.”  With the explosion of TCPA lawsuits in recent years, however, insurers have looked to reduce their own exposure by adding exclusions to their policies that expressly bar coverage for TCPA claims.  At the same time, many carriers have started offering affirmative coverage for TCPA liability.  Policyholders usually must pay extra for this, however, and the coverage often comes with reduced sublimits of liability or other restrictions on coverage.

But even when a policy has an express TCPA exclusion, an insurer still might have to defend its insured in a lawsuit that asserts TCPA claims because of a general principle of insurance law recognized by courts around the country: if a lawsuit asserts multiple claims against an insured, and at least one of those claims is covered by the policy, the insurer must defend the entire lawsuit – even if the other claims are expressly excluded from coverage.  Thus, an insurer whose policy excludes TCPA claims might have to defend a TCPA lawsuit if the plaintiff also includes a false advertising or defamation claim, both of which are expressly covered.
Continue Reading Seventh Circuit Reminds Insurance Policyholders to Shop Carefully for TCPA Coverage

On April 1, 2021, in a unanimous decision, the Supreme Court ruled that the definition of an automatic telephone dialing system (“ATDS”) under the TCPA is limited by the plain grammar of the statute itself.  The Court, in a decision authored by Justice Sotomayor, held that a device must have the capacity to use a

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

On July 6, 2020, in a 7-2 decision, the Supreme Court upheld the constitutionality of the TCPA, but severed as unconstitutional the government debt exception.  William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020).  Our preview of the Supreme Court’s consideration of the Barr case can

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the

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

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