Category: Litigation & Arbitration

1
Ninth Circuit Weighs Impact of “Mixed Use” of Wireless Numbers on Do Not Call Regulations
2
Washington Becomes Latest State to Tighten Restrictions on Telemarketing
3
Supreme Court Agrees to Review Growing Circuit Split on Definition of ATDS
4
Supreme Court Declares TCPA Government-Debt Exception Unconstitutional but Severs Provision to Preserve Remainder of TCPA
5
Second Circuit Goes Against the Tide; Adopts Broad Definition of Autodialer
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COVID-19: UPDATED Emergency and Healthcare Calls and Texts
7
COVID-19: NY State of Emergency Imposes Ban on Telemarketing Calls
8
Strength in Numbers: The Seventh Circuit Joins the Third and Eleventh Circuits in Limiting the Definition of an Automatic Telephone Dialing System under the TCPA
9
Eleventh Circuit Holds That a Single, Unsolicited Text Message Does Not Confer Article III Standing Under the TCPA
10
Circuit Court Affirms Holding Reducing TCPA Award by 98%

Ninth Circuit Weighs Impact of “Mixed Use” of Wireless Numbers on Do Not Call Regulations

By Joseph C. Wylie II, Nicole C. Mueller, Jonathan R. Vaitl

Under the plain language of the Telephone Consumer Protection Act of 1991 (TCPA) and its regulations, only “residential telephone subscribers” have a right of action for violations of the do-not-call registry.1 The issue becomes murky, though, when a number is used for both residential and business purposes. The Ninth Circuit recently addressed this question and concluded that there is no simple answer when determining whether a mixed-use line is “residential” but, instead, requires a fact-intensive inquiry into each individual number.2

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Washington Becomes Latest State to Tighten Restrictions on Telemarketing

By Joseph C. Wylie II, Molly K. McGinley, Jonathan R. Vaitl

While claims under the Telephone Consumer Protection Act have become more difficult for plaintiffs to assert successfully following the U.S. Supreme Court’s decision in Facebook v. Duguid,1 several states, such as Florida, have taken the initiative to enhance their own telemarketing restrictions. Washington has become the latest state to join that trend. House Bill (H.B.) 1497,2 which goes into effect on 9 June 2022, revises portions of the state’s existing telemarketing laws to, among other things, broaden the scope of how the law defines “telephone solicitation” and the reach of a do-not-call request, impose new obligations on callers requesting a donation or gift, and tighten the requirements for callers to identify themselves.

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Supreme Court Agrees to Review Growing Circuit Split on Definition of ATDS

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau

On Thursday, the United States Supreme Court agreed to review the question of what type of dialing equipment qualifies as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA).  The Court’s review arises from a challenge to the Ninth Circuit’s broad definition of ATDS.  The plain language of the TCPA states that an ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.”  47 U.S.C. § 227(a)(1).  Since the D.C. Circuit abrogated the Federal Communications Commission (FCC) rulings construing that language, see ACA International v. FCC, 885 F.3d 687, 701 (D.C. Cir. 2018), a split has emerged among the federal circuit courts that have examined the definition.  The Ninth and Second Circuits have held that a dialing system need only have the capacity to “store numbers to be called” and “to dial such numbers automatically” to constitute an ATDS.  See Duran v. La Boom Disco, Inc., 955 F.3d 279, 283-84 (2d Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052-53 (9th Cir. 2018).  The Third, Seventh, and Eleventh Circuits, on the other hand, have reined in the definition of ATDS.  These courts have held that a system cannot constitute an ATDS where it lacks the capacity either to (1) store telephone numbers to be called using a random or sequential number generator, or (2) produce telephone numbers to be called using a random or sequential number generator.  See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 464, 469 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, 1310 (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116, 119-21 (3d Cir. 2018).   

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Supreme Court Declares TCPA Government-Debt Exception Unconstitutional but Severs Provision to Preserve Remainder of TCPA

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau

On Monday, the United States Supreme Court issued a decision upholding the broad prohibition against autodialed calls to cells phones under the Telephone Consumer Protection Act (TCPA) but ruling that a 2015 exception, which had allowed autodialed calls for the purposes of collecting federally-backed debts such as student loans and mortgage debts, violated the First Amendment.  Thus, the Court held that the exception is invalid and must be severed from the statute.  Under Section 227(b)(1)(A)(iii) of the TCPA, it is unlawful to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone.  See 47 U.S.C. § 227(b)(1)(A)(iii).  In 2015, Congress passed an exception that permitted autodialed calls “made solely to collect a debt owed to or guaranteed by the United States.”  Id.  A number of political and nonprofit organizations, seeking to make autodialed calls to cell phones for political purposes, filed suit seeking to invalidate Section 227(b)(1)(A)(iii) in its entirety on the basis that the 2015 exception impermissibly favored government debt-collection speech over political and other speech in violation of the First Amendment of the Constitution.  The plaintiffs reasoned that the 2015 exception “undermine[d] the credibility” of the government’s interest in consumer privacy and that if Congress no longer had a genuine interest in consumer privacy, then the underlying 1991 robocall re­striction is no longer justified and is thus unconstitu­tional.

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Second Circuit Goes Against the Tide; Adopts Broad Definition of Autodialer

By Joseph C. Wylie IIMolly K. McGinley, and Sarah K. Bauman

In Duran v. La Boom Disco, Inc., the Second Circuit adopted a broad definition of an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The Second Circuit joined the Ninth Circuit, further deepening the circuit split on the definition of ATDS with the Third, Seventh, and Eleventh Circuit.

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COVID-19: UPDATED Emergency and Healthcare Calls and Texts

By Joseph C. Wylie IIMolly K. McGinley, and Nicole C. Mueller

UPDATE: Since our original publication, the Federal Communication Commission issued interpretive guidance on applicability of the emergency purpose exclusion, discussed below.

In the current environment, companies face a need to communicate with customers and patients about the impact that coronavirus (“COVID-19”) will have on their ability to provide goods and services. Companies should be aware of how the Telephone Consumer Protection Act, 42 U.S.C. §. 447 et seq. (the “TCPA”) may impact their calling and texting practices. This alert discusses certain exemptions to the TCPA that may allow companies to continue to contact clients and customers through automated and prerecorded phone calls and texts regarding the COVID-19 outbreak. Businesses can and should continue to contact clients as needed, with carefully tailored messages, to provide necessary updates regarding the COVID-19 pandemic.

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COVID-19: NY State of Emergency Imposes Ban on Telemarketing Calls

By Joseph C. Wylie IIMolly K. McGinley, and Nicole C. Mueller

On Saturday, March 7, 2020, Governor Andrew Cuomo declared a disaster state of emergency in the State of New York based on the COVID-19 outbreak. One significant consequence is that under a newly-enacted law, unsolicited telemarketing calls to New York residents are now prohibited during a state of emergency.

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Strength in Numbers: The Seventh Circuit Joins the Third and Eleventh Circuits in Limiting the Definition of an Automatic Telephone Dialing System under the TCPA

By Andrew C. GlassGregory N. BlaseJoseph C. Wylie IIMolly K. McGinleyHollee M. Boudreau, and Adam R.D. Paine

The Seventh Circuit recently acted to limit the definition of “automatic telephone dialing system” (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In Gadelhak v. AT&T Services, Inc., [1] the court ruled that a dialing system that “neither stores nor produces numbers using a random or sequential number generator,” but rather “exclusively dials numbers stored in a customer database,” “is not an ‘automatic telephone dialing system’ as defined by the Act.” In construing the definition of ATDS narrowly, the Seventh Circuit joined the interpretation adopted by the Third and Eleventh Circuits and rejected the Ninth Circuit’s differing interpretation.

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Eleventh Circuit Holds That a Single, Unsolicited Text Message Does Not Confer Article III Standing Under the TCPA

By Andrew C. Glass, Gregory N. Blase, and Hollee M. Watson

In a recent decision, the Eleventh Circuit held that a plaintiff’s receipt of a single, unsolicited text message does not constitute an injury sufficient to confer standing necessary to pursue a viable claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The holding in Salcedo v. Hanna – F.3d —, 2019 WL 4050424 (11th Cir. Aug. 28, 2019), has created a circuit split on the issue of Article III standing under the TCPA—a split which may cause the Supreme Court to clarify the scope of its decision in Spokeo, Inc. v. Robins (previously discussed here). In Spokeo, the Court addressed the question of what constitutes a concrete injury sufficient to establish Article III standing to pursue a statutory cause of action (there, the Fair Credit Reporting Act). But lower courts have interpreted and applied Spokeo in differing ways. The Eleventh Circuit decision may also have the effect of curbing TCPA class actions. Plaintiffs in that circuit will now have to allege and prove the sufficient concrete harm caused by their receipt of text messages.

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Circuit Court Affirms Holding Reducing TCPA Award by 98%

By Joseph C. Wylie II, Molly K. McGinley, and Nicole C. Mueller

In Golan v. FreeEats.com d/b/a ccAdvertising et al., the Eighth Circuit recently affirmed a trial court’s decision to reduce a TCPA judgment by approximately 98% on the grounds that an aggregate award of approximately $1.6 billion was unreasonable and disproportionate to the offense, and therefore unconstitutional.  In so holding, the Eighth Circuit deviated from long-standing case law rejecting constitutional challenges to the amount of statutory damages allowed under the TCPA.  If the Eighth Circuit’s analysis is adopted more widely, it could bring a needed measure of rationality to awards under the TCPA.

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