A class action lawsuit has been filed against a medical equipment seller for alleged violations of the junk fax provisions of the Telephone Consumer Protection Act (“TCPA”). The TCPA fax lawsuit, filed in the United States District Court for the Northern District of Illinois, arises from the alleged receipt of unsolicited fax advertisements for the sale of personal protective equipment (PPE), including facemasks.
On December 14, 2020, the Federal Communications Communication (“FCC”) issued an Order on Reconsideration (“Order”) overturning a 2016 decision that allowed federal government contractors to robocall consumers without their prior express consent. The Order updated the FCC’s previous interpretation of the Telephone Consumer Protection Act (“TCPA”). Now, the FCC has made clear that certain government contractors are not exempt from TCPA robocall regulations. Federal government contractors are, therefore, required to obtain prior express consent before calling consumers through automated means.
Why did the FCC update its interpretation?[Read More]
As its name suggests, the Telephone Consumer Protection Act of 1991 (“TCPA”) was drafted, debated, passed, and signed into law well before cell phones became ubiquitous. It is, therefore, unsurprising that the statutory language of the TCPA does not expressly state whether the law applies to text messages. This was a subject of great interest in recent oral arguments before the United States Supreme Court (“SCOTUS”) in Facebook v. Duguid (“Facebook”). In Facebook, several of SCOTUS’s textualist Justices wondered aloud whether the TCPA could or should apply to text messages, when the statute does not even mention them.
What was the Crux of the Justices’ Questions?[Read More]
The United States Supreme Court (“SCOTUS”) held oral arguments this week on Facebook, Inc. v. Duguid. The Justices are being asked to provide the definitive answer on the TCPA’s ATDS definition. For years, what dialing equipment qualifies as an automatic telephone dialing system (“ATDS”) for purposes of the Telephone Consumer Protection Act (“TCPA”) has been a moving target. Following this week’s oral arguments, SCOTUS is at long last poised to definitively answer the question.
How might SCOTUS decide the TCPA ATDS definition based on the oral argument?[Read More]
The Federal Communications Commission (“FCC”) is in the process of evaluating whether to issue a declaratory ruling which would provide clarification on if and how companies are permitted to respond to consumer TCPA opt-out requests. Such guidance offers the promise of providing much needed certainty to businesses trying to more efficiently manage relationships with their customers.
What is being asked of the FCC with respect to the TCPA Opt-Out issue?[Read More]
Since 2018, businesses have been working diligently to hit the ever-moving target of California Consumer Privacy Act (“CCPA”) compliance. Just as the California Attorney General had begun CCPA enforcement, the State has now voted to approve Proposition 24, the California Privacy Rights Act (“CPRA”), to create what amounts to a new CCPA. Like the CCPA, the CPRA will go through a series of changes before its enforcement date. Notwithstanding the foregoing, businesses should begin to prepare for compliance implementation.
What is the CPRA timeline?[Read More]
On November 3, 2020, Election Day, New York Attorney General Letitia James issued a press release addressing suspicious robocalls received by New York residents in the run up to the election. According to Attorney General James, many New Yorkers received automated calls “spreading disinformation and encouraging people to stay home on election day.” If true, these calls would violate numerous laws meant to protect free and fair elections. While such calls clearly run afoul of applicable robocall law, it is important to remember that other automated calls do not need to be so nefarious to violate of state and federal telemarketing laws.
What is Robocalling?[Read More]
For several years, courts across the country have struggled to define the term “Automatic Telephone Dialing System” (“ATDS”) within the context of the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA prohibits making calls or sending text messages “(other than a call made for emergency purposes or made with the prior express consent of the called party) using an [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” In the spring of 2020, the Seventh Circuit Court of Appeals, in Gadelhak v. AT&T Services, Inc., held that a device must either store or produce numbers using a random or sequential number generator to constitute an ATDS for TCPA liability purposes. In doing so, the Seventh Circuit contributed to the growing circuit split regarding the ATDS definition. Gadelhak has since appealed the decision to the United States Supreme Court. Now, AT&T has asked the Supreme Court to stay Gadelhak’s appeal pending its anticipated decision on the same issue in Duguid v. Facebook.
What is the substance of the appeal?[Read More]