Consumer Issues, Privacy & Data Security

“Grandma, I have [not] been kidnapped”: The FCC Bans AI-Generated Robocalls

Feb 12 2024

By: Andrew Glass, Gregory Blase, and Joshua Durham

Effective immediately, the Federal Communications Commission (FCC) banned AI-generated phone calls with its recent Declaratory Ruling (the Ruling). Known as audio or voice “deepfakes,” AI can be trained to mimic any person’s voice, resulting in novel scams such as grandparents receiving a call from their “grandchild” and believing they have been kidnapped or need money for bail. FCC Commissioner Starks deemed such deepfakes a threat to election integrity, recalling that just recently, “potential primary voters in New Hampshire received a call, purportedly from President Biden, telling them to stay home and ‘save your vote’ by skipping the state’s primary.”

Florida Legislature Passes Bill to Bring Common-Sense Changes to the Florida Telephone Solicitation Act

May 03 2023

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

Florida’s legislature has sent changes to the Florida Telephone Solicitation Act (the FTSA) to the governor’s desk for signature that significantly restrict the scope of the act and the private right of action thereunder. These changes narrow the definition of technologies falling within the statute, clarify the process for obtaining consent, and impose a notice-and-cure requirement before allowing a suit to be brought. Notably, these changes would apply to all new actions and to all pending putative class actions in which a class has not been certified. These changes, if enacted, likely will have a broad impact on both current and future cases.

New Emergency Declaration in New York Furthers Ban on Unsolicited Telemarketing Calls

Aug 20 2021

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

On 5 August 2021, Governor Andrew Cuomo continued a statewide disaster emergency due to gun violence that he first declared on 6 July 2021. As previously discussed in our March 2020 post about Governor Cuomo’s COVID-19 emergency declaration, under New York’s Do Not Call Registry statute and its Telemarketing and Consumer Fraud and Abuse Protection Act, it is illegal to knowingly make unsolicited telemarketing sales calls to areas of the state under an emergency declaration. The Governor’s latest executive order declaring a state of emergency once again triggers this prohibition on a statewide basis.

Florida Law Would Dramatically Expand Autodialer Restrictions

Jun 23 2021

By Molly K. McGinley, Joseph C. Wylie II, Sebastian Crisan (CI SA)

In May 2021, the Florida legislature passed Senate Bill 1120 (Florida Robocall Bill), which updates the state’s existing telemarking laws. The proposed changes parallel certain provisions in the federal Telephone Consumer Protection Act (TCPA), including:

Requiring prior express written consent for calls made using an automated selection and dialing system; and
Creating a private cause of action for any violation of the do not call provisions.

COVID-19: UPDATED Emergency and Healthcare Calls and Texts

Mar 20 2020

By Joseph C. Wylie II, Molly 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.

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

Mar 11 2020

By Joseph C. Wylie II, Molly 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.

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

Feb 25 2020

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

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

Sep 05 2019

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.

Supreme Court Declines to Define Scope of Deference Courts Should Apply to FCC TCPA Orders

Jun 25 2019

Authors: Joseph C. Wylie, Molly K. McGinley, Nicole C. Mueller

Last week, in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Case No. 17-1705 (2019), the Supreme Court declined to decide the level of deference that courts must afford the Federal Communications Commission (the “FCC”), finding that the answer may depend on resolution of two preliminary issues that had not been decided by the lower courts. The matter has been remanded to the Court of Appeals for the Fourth Circuit. In declining to reach the issues presented, the Supreme Court leaves open the crucial question of whether courts are bound by the FCC’s interpretation of the Telephone Consumer Protection Act (“TCPA”).

Catagory:Consumer Issues, Privacy & Data Security