August 2016 – TCPA Watch

Webinar: Developments Under the Telephone Consumer Protection Act

Aug 31 2016

Please join four of our partners with a broad range of experience involving the Telephone Consumer Protection Act (TCPA) for a webinar addressing important topics relating to what presently is one of the most ubiquitous statutes in class action litigation. The webinar will cover:

An overview of the TCPA and related regulations
Current litigation trends and developments under the TCPA
Impact of recent orders of the Federal Communications Commission
Practical effects on businesses and compliance issues
ACA International’s appeal regarding automatic telephone dialing systems

Panelists:

Gregory N. Blase, Partner, Boston
Andrew C. Glass, Partner, Boston
Molly K. McGinley, Partner, Chicago
Joseph C. Wylie II, Partner, Chicago

To register, please click here.

Consumers Union Supports Stay of FCC’s July 2016 Broadnet Ruling Exempting Federal Contractors from Ban on Robocalls

Aug 24 2016

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

Consumers Union, the consumer advocacy arm of Consumer Reports, has filed a letter in support of the National Consumer Law Center’s (NCLC) request that the Federal Communications Commission (FCC) stay its recent ruling on Broadnet Teleservices LLC’s Petition for Declaratory Ruling in the on-going rulemaking matter In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 while that ruling is under appeal. The July 5, 2016, Broadnet Ruling (previously discussed here) held that the TCPA, and its ban on autodialed calls to cellular telephones, does not apply to calls placed by the federal government itself, or its contractors, so long as the calls are placed in the course of conducting “official government business” and, for calls placed by contractors, the calls comply with the government’s instructions. On July 26, 2016, the NCLC moved the FCC to reconsider its ruling and stay its effect until the motion is resolved. Consumers Union is joining the request for the stay as part of its “End Robocalls” campaign, which purportedly seeks “technological solutions to the unwanted robocall problem,” according to the group’s letter to the FCC. If the requested stay is granted, federal government employees and contractors will continue to be subject to the TCPA unless the Broadnet Ruling is upheld.

District Court Finds Social Media Company Is Not “Sender” of Calls Under TCPA

Aug 15 2016

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

A federal court in California recently dismissed a class action accusing mobile application company Life360, Inc. (“Life360”) of violating the TCPA on the grounds that the company could not be liable for texts initiated by app users. The Court found that Life360 was not the “sender” of the texts initiated using its platform and, therefore, could not be held liable under the TCPA, because users—not the application itself—selected when and to whom the texts were sent.

Life360 operates a mobile phone application that allows users to communicate with and see the location of their friends and family. Users of the app who provide Life360 with access to their phone’s contact list can direct the app to “Invite” certain contacts to use the app and share their location and exchange messages with the user. According to the complaint, the user is not instructed on how or when invitations will be sent. Plaintiff Terry Cour alleged that Life360 sent him unwanted texts even though he was not a Life360 user and had never downloaded the app onto any device. Following the receipt of text messages from the app, Cour filed a lawsuit on behalf of himself and a class of persons similarly situated, alleging that Life360’s texts violated the TCPA.

FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools

Aug 11 2016

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

On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls. The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.

Not So Fast: Political Organizations Amend Complaint Challenging Constitutionality of TCPA in Response to Attorney General’s Motion to Dismiss

Aug 10 2016

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

A bi-partisan coalition of five political groups, seeking a declaration that the Telephone Consumer Protection Act (TCPA) violates the First Amendment, recently filed an Amended Complaint in American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.). The Amended Complaint addresses purported deficiencies in the original Complaint that Attorney General Loretta Lynch raised in her motion to dismiss the case.

The Amended Complaint adds the Federal Communications Commission (FCC) as a defendant and alleges that the FCC—in conjunction with Congress—intended to “create content-based exemptions to the cell phone call ban based both on the content of the speech involved and the identity of certain favored speakers.” In response to the argument that the district court lacks subject matter jurisdiction in light of the Hobbs Act, 28 U.S.C. § 2342(a), the Amended Complaint asserts that (1) the action is challenging a “federal statute, as it is content-based and regulates Plaintiffs’ fully-protected, political speech,” and not the FCC orders and rules implementing the TCPA, and thus (2) it is not subject to the Hobbs Act’s strict procedural requirements applicable to challenges to FCC rules.

Additionally, in an attempt to demonstrate standing, the plaintiffs attached to the Amended Complaint a series of revised declarations of various representatives of the groups bringing suit. The declarations, unlike those submitted with the original complaint, explain how the TCPA’s prohibitions on calls to cellular telephones using automatic telephone dialing systems, prerecorded voice messages, or automated voice messages impact the calling practices of the plaintiffs’ members.

Lynch’s response is due to be filed on August 19, 2016; the FCC’s response will be due within 60 days of being served with a summons and the Amended Complaint.

Archive:August 2016