Other Topics – Page 5

Political Organizations Mount First Amendment Challenge to TCPA’s Cell Phone Ban Restricting Autodialed and Prerecorded Voice Calls to Constituents

May 16 2016

By Joseph C. Wylie II, Molly K. McGinley, Courtney E. Torres

Although the primary target of the TCPA is telemarketing and commercial solicitations, certain TCPA restrictions, including prohibitions on the use of prerecorded voice messages and automatic telephone dialing systems (“ATDS”) for calls placed to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii) (hereinafter “the cell phone ban”), apply with equal force to calls made by political campaigns.

On May 12, 2016, several political organizations, American Association of Political Consultants, Inc. (“AAPC”), Democratic Party of Oregon, Inc. (“DPO”), Public Policy Polling, LLC (“PPP”), Tea Party Forward PAC (“TPF”), and Washington State Democratic Central Committee (“WSDCC”) (collectively, “Plaintiffs”), brought a First Amendment challenge to the prohibition on making unsolicited calls to wireless telephone numbers by filing a declaratory judgment action in the United States District Court for the Eastern District of North Carolina against the Attorney General of the United States. American Association of Political Consultants, Inc., et al. v. Lynch, No. 5:16-cv-00252-D (E.D.N.C. May 12, 2016).

Eighth Circuit Articulates New Ascertainability Standard in TCPA Class Actions

May 11 2016

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

The Eighth Circuit Court of Appeals recently reversed a trial court’s decision not to certify a TCPA class on grounds that the proposed class was not ascertainable. In so doing, the Eighth Circuit declined to adopt the Third Circuit’s heightened standard for ascertainability as a “separate, preliminary requirement” for class certification. In the published opinion, the Court articulated its own “rigorous analysis of Rule 23 requirements, which includes that a class ‘must be adequately defined and clearly ascertainable.’”

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., Plaintiff alleged that MedTox, a toxicology lab, transmitted a single-page fax to approximately 3,000 fax numbers, all recorded onto a log in the plaintiff’s possession. Plaintiff moved to certify a class that included all people in the four years prior to the action’s filing who received a fax message from Medtox regarding lead testing services that did not display a proper opt-out notice. The district court, in denying class certification, held the plaintiff failed to show ascertainability because it could not establish who was included in the class. The trial court focused on the potential for multiple claimants with respect to individual faxes, noting that the class could be seen as including both the subscriber of the telephone line on which the fax was received, and the intended recipient of the fax.

Circuit and District Courts Grapple with Questions Raised in the Wake of Campbell-Ewald v. Gomez

Apr 27 2016

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

In the wake of Campbell-Ewald v. Gomez, in which the Supreme Court held that an unaccepted Rule 68 offer of complete relief does not moot a plaintiff’s individual claims, the Third Circuit recently held that an unaccepted settlement offer “has no force” and therefore neither the plaintiffs’ individual claims nor the class claims in the suit were mooted by defendant’s offer of full relief prior to the filing of a motion to certify a class in Weitzner et al. v. Sanofi Pasteur Inc. et al. (Our previous analysis of Campbell-Ewald can be found here.)

Seventh Circuit Holds That TCPA Fax Regulations Do Not Impose Strict Liability for Actions of Contractors

Apr 26 2016

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

On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793 (7th. Cir. 2016), holding that agency principles apply to TCPA claims in determining whether a fax sent by a third-party is sent “on behalf of” a principal. In doing so, the Seventh Circuit applied a uniform standard of agency principles to fax advertisements and calls under the TCPA despite the Federal Communications Commission’s (the “FCC”) previous assertions that vicarious liability for fax activity is subject to a different and potentially broader test. As previously discussed, other courts have declined to apply agency principles to decide this question, in effect applying different standards to fax and call activity.

Safe Harbor 2.0 is Coming (This Week)

Feb 01 2016

US companies will need to take action to comply with any new agreement

By Bruce J. Heiman, Ignasi Guardans, Etienne Drouard

As we explained in detail in our Explanatory note of October 6 2015, and the webinar that followed held on October 9, the Schrems decision of the Court of Justice of the EU (CJEU) invalidated the US Safe Harbor program, and as a result of that most transfers of European personal data to the US done under that scheme became potentially illegal, if not covered by other legal options as described below.

Subsequently, Europe’s national Data Protection Authorities (DPAs), through the so called Article 29 Working Group, declared their intention not to bring enforcement actions against such EU – US data transfers before February 1, in order to give the US and EU time to reach a new agreement that could meet the objections raised by the CJEU.

Webinar Update: European Commission Strategy on the Digital Single Market

May 19 2015

We recently held a webinar on the highly anticipated EU’s Digital Single Market Strategy, which was released on May 6th by the European Commission.

To listen to the webinar recording and view the presentation slides, please click here.

Update: Telecom Providers Seek Stay of FCC Open Internet Order from D.C. Circuit

May 13 2015

Just two days ago we posted on the FCC’s denial of several petitions to stay implementation of the FCC’s Open Internet Order,which is set to go into effect on June 12, 2015.

Today, telecom and cable providers asked a federal court to delay implementation of the Open Internet Order, saying that “if the Order becomes effective, the FCC will become the ‘Department of the Internet.’”

DOT Initiates Process to Mandate Vehicle-to-Vehicle Communications Technology In New Vehicles

Aug 22 2014

By Tom DeCesar, Ed Fishman, Cliff Rothenstein and Marty Stern

A new federal proposal would require new passenger cars and trucks to contain vehicle-to-vehicle communication technology, which uses radio communications to allow vehicles to “talk” to each other and, for example, warn drivers of safety hazards. Cars that have this technology installed can communicate without the active involvement of a driver or passengers. Proponents believe this technology also can be used to reduce vehicle emissions, fuel consumption and traffic congestion. V2V is seen by many as an important part of the new wave of intelligent transportation systems, which will offer improved safety and functionality in the U.S. surface transportation network.

Connected Vehicles and Drones Get Boost From New Federal Research Programs

May 29 2014

By Tom DeCesar, Ed Fishman, Cliff Rothenstein and Marty Stern

Through the implementation of new pilot research programs, the U.S. Department of Transportation has placed itself in the middle of two of the transportation industry’s most significant innovations: connected vehicles and commercial drones.

Eleventh Circuit Construes ‘Called Party’ Consent Provision of TCPA

Apr 22 2014

By Andrew Glass and Greg Blase

Courts continue to weigh in on the evolving body of law under the Telephone Consumer Protection Act. Last month, the U.S. Court of Appeals for the Eleventh Circuit joined the conversation on the issue of who may be considered the “called party” under the TCPA for purposes of providing consent to receive auto-dialed and pre-recorded voice calls placed to a wireless number. The TCPA prohibits such calls to wireless phones without the “prior express consent of the called party.”

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