On Friday, the Attorney General of the United States responded to a lawsuit brought by a bi-partisan coalition of political groups challenging the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.) (previously discussed here) the plaintiffs seek a declaration that the TCPA violates the First Amendment. The lawsuit asserts that the statute imposes a content-based restriction on speech that fails to pass strict scrutiny.
The Seventh Circuit recently reaffirmed its holding in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793 (7th. Cir. 2016), which established that agency principles apply in determining whether a fax was sent “on behalf of” a sender under the TCPA.
On June 16, 2016, the court in Paldo Sign & Display Co. v. Wagener Equities, Inc., No. 15-1267, 2016 WL 3348738 (7th Cir.) held that TCPA fax regulations do not impose strict liability on entities whose products or services are being promoted by third parties. In Paldo, a company sued Wagener Equities under the TCPA after receiving an unsolicited fax promoting Wagener’s services. That same communication allegedly was faxed to over ten thousand recipients via a third party distributor, Marketing Research, also known as B2B, which exposed Wagener to potential damages exceeding five million dollars. Paldo maintained that Wagener was liable for B2B’s transfer of the faxes despite never having approved the ads.
On July 5, 2016, the Federal Communications Commission (the “FCC” or “Commission”) released a Declaratory Ruling clarifying that the Telephone Consumer Protection Act (the “TCPA”) does not apply to autodialed or prerecorded- or artificial-voice phone calls, including text messages, made by the federal government and its contractors who are acting within the scope of their authority. The FCC did not address whether the TCPA continues to apply to state and local governments and their agents.
Last week a California federal court ruled that Twitter, Inc. is liable under the Telephone Consumer Protection Act (“TCPA”) for tweets it sent via text message to the new owner of a recycled cell phone number. The Court found that the online social networking service was the “sender” of the tweets, as that term is defined under the statute, rather than the authors of the tweets or the former owner of the cellphone who opted to receive the text messages. In doing so, the Court reiterated the Federal Communications Commission (the “FCC”)’s previous caution that where autodialers are utilized to make robocalls to a wireless number, it is the caller – and not the wireless recipient of the call – who bears the risk that the call was made without the prior express consent required under the statute. The Court also found that Twitter could not be shielded from liability under the Communications Decency Act of 1996.