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District Court holds TCPA covers direct-drop voicemails
On July 16, the U.S. District Court for the Western District of Michigan held in a matter of first impression that direct-to-voicemail or direct-drop voicemails are covered by the Telephone Consumer Protection Act (TCPA). In so holding, the court denied a debt collection agency’s (defendant) motion for summary judgment. According to the opinion, the defendant asserted that the prerecorded voicemails left on the plaintiff’s cell phone in an effort to collect a mortgage did not violate the TCPA because calls were not dialed to the cell phone but rather deposited directly on a voicemail service—an action the defendant claimed was not within the scope of the TCPA and unregulated. However, the court found that the defendant’s use of the voicemail product constituted as a “call” within TCPA’s broadly constructed purview. In addition, the court specifically stated that the direct drop voicemails left by the defendant were “arguably more of a nuisance” to the plaintiff than receiving text messages since she would have to take steps each time to review or delete the message. In denying the defendant’s motion, the court held that “[b]oth the FCC and the courts have recognized that the scope of the TCPA naturally evolves in parallel with telecommunications technology as it evolves, e.g., with the advent of text messages and email-to-text messages or, as we have here, new technology to get into a consumer’s voicemail box directly.”
3rd Circuit affirms summary judgment for internet company in TCPA action
On June 26, the U.S. Court of Appeals for the 3rd Circuit affirmed summary judgment for a global internet media company holding that the plaintiff failed to show the equipment the company used fell within the definition of “automatic telephone dialing system” (autodialer) based the recent holding by the D.C. Circuit in ACA International v. FCC. (Covered by a Buckley Sandler Special Alert.) The decision results from a lawsuit filed by a consumer alleging the company’s email SMS service, which sent a text message every time a user received an email, was an “autodialer” and violated the TCPA. The consumer had not signed up for the service, but had purchased a cellphone with a reassigned number and the previous owner had elected to use the SMS service. Ultimately, the consumer received almost 28,000 text messages over 17 months. In 2014, the district court granted summary judgment for the company concluding that the email service did not qualify as an autodialer. In light of the FCC’s 2015 Declaratory Ruling—which concluded that an autodialer is not limited to its current functions but also its potential functions—the 3rd Circuit vacated the lower court’s judgment. On remand, the lower court again granted summary judgment in favor of the company.
In reaching the latest decision, the 3rd Circuit interpreted the definition of an autodialer as it would prior to the 2015 Declaratory Ruling in light of the D.C. Circuit’s recent holding, which struck down the part of the FCC’s 2015 Ruling expanding the definition to potential capacity. The appellate court held that the consumer failed to show that the email SMS service had the present capacity to function as an autodialer.
FCC seeks comments on interpretation of autodialer under TCPA
On May 14, the FCC’s Consumer and Governmental Affairs Bureau released a notice seeking comment on the interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent D.C. Circuit decision in ACA International v. FCC. (Covered by a Buckley Sandler Special Alert.) The notice requests, among other things, comment on what constitutes an “automatic telephone dialing system” (autodialer) due to the court setting aside the FCC’s 2015 interpretation of an autodialer as “unreasonably expansive.” Specifically, the FCC requests comment on how to interpret the term “capacity” under the TCPA’s definition of an autodialer (“equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers”) and requests comment on the functions a device must be able to perform to qualify as an autodialer, including how “automatic” the dialing mechanism must be. Additionally, the notice seeks comment on (i) how to treat reassigned wireless numbers under the TCPA; (ii) how a party may revoke prior express consent to receive robocalls; and (iii) three pending petitions for reconsideration, including the 2016 Broadnet Declaratory Ruling and the 2016 Federal Debt Collection Rules. Comments are due by June 13 and reply comments are due by June 28.
On May 3, the U.S. Chamber of Commerce, the American Bankers Association, and over a dozen more trade associations petitioned the FCC seeking a declaratory ruling on the definition of an autodialer under the TCPA, previously covered by InfoBytes here.
Trade groups petition FCC to clarify definition of autodialer under TCPA
On May 3, the U.S. Chamber of Commerce, the American Bankers Association, and over a dozen more trade associations petitioned the FCC seeking a declaratory ruling on the definition of an “automatic telephone dialing system” (autodialer) under the Telephone Consumer Protection Act (TCPA). The petition results from the recent D.C. Circuit decision (covered by a Buckley Sandler Special Alert), which struck down the FCC’s 2015 definition of an autodialer as “unreasonably expansive” because it failed to adequately describe what functions qualify a device as an autodialer. The petition seeks clarity on the definition of an autodialer that is subject to Section 227(b) of the TCPA, and specifically requests the FCC state that in order to be considered an autodialer, the equipment must “store or produce numbers to be called, using a random or sequential number generator, and dial such numbers.” Additionally, the petition requests that only calls made using the actual autodialer capabilities be subject to the restrictions of the TCPA. The petitioners argue that adopting the requested definition would “ensure that legitimate businesses can contact their consumers without fearing a lawsuit under Section 227(b) of the TCPA.”
Buckley Sandler Special Alert: D.C. Circuit significantly narrows FCC’s order defining autodialer
On March 16, the D.C. Circuit issued its much-anticipated ruling in ACA International v. FCC. The D.C. Circuit’s ruling significantly narrows a Federal Communication Commission order from 2015, which, among other things, had broadly defined an “autodialer” for purposes of the Telephone Consumer Protection Act.
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Click here to read the full special alert.
If you have questions about the ruling or other related issues, please visit our Class Actions practice page, or contact a Buckley Sandler attorney with whom you have worked in the past.FCC publishes Restoring Internet Freedom Order overturning net neutrality
On February 22, the FCC formally published its Restoring Internet Freedom Order (Order) to overturn the 2015 Title II Order (known as, “Net Neutrality” rules). As previously covered in InfoBytes, the FCC voted last December to remove the restrictions barring internet service providers (ISPs) from slowing down or speeding up web traffic based on business relationships. Among other things, the Order’s “light-touch regulatory framework” will require ISPs to “publicly disclose accurate information regarding the network management practices, performance characteristics, and commercial terms of its broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.” The Order takes effect April 23. The FCC will publish a separate document in the Federal Register announcing the effective date of certain delayed amendatory instructions and the Declaratory Ruling, Report and Order, and Order.
As discussed previously in InfoBytes, two governors signed executive orders last month designed to protect net neutrality in their states.
FTC issues comments on FCC’s robocall blocking rules
On January 31, the FTC submitted a comment letter in response to the FCC’s request for input on its November adoption of rules allowing phone companies to proactively block illegal robocalls originating from certain types of phone numbers. (See previous InfoBytes coverage here.) Calling the development of a call-blocking, call-filtering solution to protect consumers from illegal and unwanted calls long overdue, the FTC offered support for efforts to encourage providers who block calls to “identify and quickly rectify any erroneous blocking.” However, FTC staff claimed that, based on the current record, it is unclear whether there exists “a need to require a formal challenge mechanism for errors resulting from provider-based call blocking authorized by this Report and Order.” The FTC noted that a formal challenge process is not necessary because, among other things, the FCC already cautions providers about wrongfully blocking unallocated or unassigned numbers and “warns providers that erroneous blocking may lead to liability for violating call completion rules.” Additionally, the FTC agreed with concerns raised by a telecom association that “white lists,” which contain numbers that should not be blocked, pose “substantial security risks” if the lists “fall into the hands of even a single robocaller” because they might serve as the “‘de facto master key’ that would provide robocallers with the ability to override all of the efforts painstakingly developed to thwart them.”
11th Circuit denies revival of TCPA suit
On January 22, the U.S. Court of Appeals for the Eleventh Circuit denied an Ohio-based bank’s request for a rehearing en banc. Last August, the three-judge panel reinstated a suit accusing the bank of violating the Telephone Consumer Protection Act (TCPA) when it allegedly made “over 200 automated calls” to the consumer plaintiff who claimed to have partially revoked her consent by telling the bank to stop calling at certain times. As previously covered in InfoBytes, the appellate court’s August 2017 decision to remand the case for trial concluded that “the TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls,” and that “unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA.” Furthermore, the decision made clear that the lower court erred in its decision to grant summary judgment in favor of the bank “because a reasonable jury could find that [the consumer plaintiff] partially revoked her consent to be called in ‘the morning’ and ‘during the workday’” during a phone call with a bank employee.
However, in its en banc rehearing petition, the bank argued that the “ruling is likely to create ambiguity amongst both consumers and callers regarding the ability of consumers to impose arbitrary limits on communications . . . despite the FCC’s consistent and unwavering proclamation that in order to revoke consent, consumers must clearly request no further communications.” The appellate court’s decision to deny the petition provides no explanation aside from noting that none of its active judges requested that the court be polled on a rehearing en banc.
State AGs file protective petition to stop rollback of net neutrality rules; Senate Democrats announce plans to reverse FCC rule
On January 16, a coalition of 22 state attorneys general filed a protective petition for review in the D.C. Circuit Court of Appeals against the Federal Communications Commission (FCC) and the United States to block the FCC’s Declaratory Ruling, Report and Order released last December to rollback the 2015 Open Internet Order rules (known as “Net Neutrality” rules). As previously covered in InfoBytes, the rollback removes the restrictions barring providers from slowing down or speeding up web traffic based on business relationships, and places the enforcement authority of the new regulatory framework with the Federal Trade Commission (FTC).
In the petition, the states allege violations of the Administrative Procedure Act’s notice-and-comment rulemaking requirements, and claim that the FCC's actions with respect to Net Neutrality were “arbitrary, capricious, and an abuse of discretion.” According to a press release issued by New York Attorney General Eric T. Schneiderman:
The FCC’s new rule fails to justify the Commission’s departure from its long-standing policy and practice of defending net neutrality, while misinterpreting and disregarding critical record evidence on industry practices and harm to consumers and businesses. . . Moreover, the rule wrongly reclassifies broadband internet as a Title I information service, rather than a Title II telecommunications service, based on an erroneous and unreasonable interpretation of the Telecommunications Act. Finally, the rule improperly and unlawfully includes sweeping preemption of state and local laws.
Separately that same day, Senate Democrats announced plans to formally introduce a resolution of disapproval under the Congressional Review Act to reverse the FCC’s vote and restore the Net Neutrality rules. Once the rule is submitted to both houses of Congress, the resolution will be formally introduced, published in the Federal Register, and voted upon within 60 legislative days.
FCC Votes to Overturn Net Neutrality Rules
On December 14, the FCC voted 3-2 to overturn the 2015 Open Internet Order rules (known as, “Net Neutrality” rules) which mandate that internet service providers (ISPs) treat all web content equally. The FCC released a draft order in November, which outlined the new framework for ISPs, including removing the restrictions barring the providers from slowing down or speeding up web traffic based on business relationships. ISPs are now required to publicly disclose information about their practices including any paid or affiliated prioritization of web content. The FCC places the enforcement authority of the new regulatory framework with the FTC. The order is effective upon OMB approval of the new requirements for ISP public disclosures.