Telemarketing – TCPA Watch

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.

Ninth Circuit Answers Lingering Question on Scope of ‘Autodialer’

Dec 14 2022

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

Since the U.S. Supreme Court issued its decision in Facebook v. Duguid,¹ district courts have wrestled with the language of one particular footnote that appears, at least on the surface, to suggest that equipment that randomly or sequentially generates the order in which to dial pre-populated phone numbers qualifies as an automated telephone dialing system, or autodialer.² The majority of district courts have rejected this interpretation, but until recently, few circuit courts had weighed in.

Washington Becomes Latest State to Tighten Restrictions on Telemarketing

May 23 2022

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.

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: 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.

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”).

District Court Confirms That Text Messages Completing Consumer-Initiated Transaction Are Not Telemarketing

Jul 18 2017

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

A recent decision from the Western District of Washington, Noah Wick v. Twilio Inc., Case No. C16-00914RSL, resulted in dismissal of a putative class action lawsuit under the Telephone Consumer Protection Act, 47 U.S. Code § 227 (“TCPA”), against Twilio Inc. (“Twilio”), a cloud communications platform service company which allows software developers to programmatically make and receive phone calls and send and receive text messages using its platform. Although several of Twilio’s arguments for dismissal were rejected, the court agreed with Twilio that the plaintiffs’ claims should be dismissed because a text message sent to complete a customer-initiated transaction is not telemarketing and the customer in this instance had given prior express consent to be contacted by providing his mobile number to the sender. Read More

U.S. House Judiciary Committee Examines Lawsuit Abuse and the TCPA

Jun 16 2017

By Pamela Garvie, Elana Reman, Andrew Glass, Gregory Blase, Joseph C. Wylie II and Molly K. McGinley

On June 13, the U.S. House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act”. The House Energy & Commerce Committee has primary jurisdiction over the TCPA. But the Judiciary Committee oversees all matters related to the administration of justice in federal courts and has been active on a number of litigation reform matters, including most recently class action reform legislation. The Subcommittee held the hearing in response to the fact that between 2010 and 2016, TCPA case filings increased by 1,272%, and today TCPA lawsuits are the largest category of class actions filed in federal court. Although some of the Subcommittee’s Democratic members, including Ranking Democrat Steve Cohen (D-TN), questioned the Committee’s jurisdictional interest in the TCPA, the hearing focused on TCPA reform––specifically with an eye toward reducing lawsuit abuse, and the Republicans said they would work with Energy & Commerce on any legislative proposals.

Dish Network Ordered to Pay $280 Million Fine, Damages in Federal TCPA Lawsuit

Jun 09 2017

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

In a 475-page opinion issued earlier this week, the United States District Court for the Central District of Illinois ordered Dish Network Corp., to pay $280 million to the United States government and four states, marking what the government says is a record fine for telemarketing violations, including violations of the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule and the laws of California, Illinois, North Carolina, and Ohio, through what the Court called “millions and millions” of calls.

In March 2009, the states and the Federal Trade Commission (“FTC”) sued Dish Network after the company settled with 46 states for purported violations of “do not call” rules and rules governing robocalling. The Court found that Dish Network and its contractors made millions of illegal calls by calling numbers listed on the national Do Not Call Registry and by placing telemarketing calls that deliver prerecorded messages to live consumers, in violation of the TCPA and the states’ laws governing telemarketing.

Plaintiffs sought damages in the amount of $2.1 billion, but the Court determined that the amount requested, approximately 150 percent of Dish Network’s annual profits, “could materially affect Dish’s ability to continue operations.” Although the Court declined to interpret the TCPA as allowing an award “up to” $500 per violation rather than $500 per violation, as Dish Network requested, the Court exercised its discretion in awarding an amount less than $500 per violation. An award of $500 per violation would have incurred a penalty of $8.1 billion; instead, the Court awarded $280 million, or twenty percent of Dish Network’s 2016 profits, an amount it determined to be “proportionate and reasonable” and “a miniscule fraction of maximum possible penalties and damages.” The Court determined the reduced award to be appropriate given that Dish Network “made some efforts to avoid violations in its direct marketing and took some actions” to monitor third-party contractors while substantial enough to reflect “[t]he injury to consumers, the disregard for the law, and the steadfast refusal to accept responsibility.”

The Court further prohibited the company from violating do-not-call laws moving forward and imposed a 20-year plan for supervision of Dish Network’s telemarketing.

This is the second judgment against Dish Network issued in 2017 for violations of the TCPA (the prior judgment, issued by a federal court in North Carolina, is discussed here and here). As the cases against Dish Network demonstrate, companies may face substantial liability based on the actions of third-party contractors.

Second Circuit Affirms Denial of Class Certification in TCPA Case on Ascertainability Grounds Due to Lack of Recipient List

Feb 17 2017

By Joseph Wylie, Molly McGinley, Nicole Mueller

In a non-precedential opinion issued earlier this week, the Second Circuit held in Leyse v. Lifetime Entertainment Services, LLC, that a class could not be certified in a Telephone Consumer Protection Act case because the plaintiff did not have a list of the recipients of telemarketing phone calls. The Second Circuit followed its own precedent identifying ascertainability as an “implied requirement” under Rule 23. In so ruling, the Second Circuit has further demonstrated the different approaches to ascertainability that federal circuit court apply (previously discussed here).

Tag:Telemarketing