A recent decision by the U.S. Court of Appeals for the Second Circuit in Duran v. La Boom Disco, Inc. has interrupted the emerging consensus around the definition of “autodialer” in the Telephone Consumer Protection Act. On April 7, 2020, a Second Circuit panel joined a Ninth Circuit panel in adopting a broad reading of the statutory definition of “automatic telephone dialing system,” commonly referred to as an autodialer. The Duran decision also rejected the reasoning in opinions issued by panels in the Seventh and Eleventh Circuits earlier this year, which deepens the split between the Courts of Appeals and increases the pressure on the Federal Communications Commission, Congress, and even the U.S. Supreme Court to provide clarity on what constitutes an autodialer under the TCPA.
On March 20, the FCC released a Declaratory Ruling confirming that the pandemic caused by the novel coronavirus qualifies as an emergency under the Telephone Consumer Protection Act. As a result, hospitals, health care providers, health officials, and other government officials may use automated calls and text messages to communicate information about COVID-19 when “necessary to protect the health and safety of citizens,” without violating the TCPA.
Slowly but surely, the U.S. Courts of Appeal increasingly agree on how to interpret the definition of “automatic telephone dialing system” in the Telephone Consumer Protection Act. On February 19, 2020, a unanimous Seventh Circuit panel refused to revise a putative class action in Gadelhak v. AT&T Services, Inc. after concluding that the dialing system used by AT&T did not qualify as an autodialer. Like the Eleventh Circuit in Glasser v. Hilton Grand Vacations Company, LLC and Third Circuit in Dominguez v. Yahoo, Inc., the Seventh Circuit held that an “autodialer” must use “a random or sequential number generator” to either store or produce numbers. Because the system used by AT&T simply pulled numbers from a database, the court found that the system was not an autodialer and the texts did not violate the TCPA.
On January 27, 2020, an Eleventh Circuit panel released a landmark ruling in Glasser v. Hilton Grand Vacations Company, LLC. The key issue in the case was how to interpret ambiguous language in the Telephone Consumer Protection Act’s definition of “automatic telephone dialing system”. In recent years, imprecise statutory phrasing and the Federal Communication Commission’s liberal reading of the legislative history empowered plaintiffs to assert TCPA claims based on a wide array of calling systems. The Eleventh Circuit panel’s decision in Glasser rejects that trend, joins the D.C. Circuit in adopting a much narrower view of the TCPA’s scope, and establishes a clear circuit split with the Ninth Circuit.
Please join us on Thursday, January 9 for a webinar discussion with Hogan Lovells attorneys Mark Brennan, Arpan Sura, and Kathryn Marshall Ali of how changes in robocall legislation may impact your compliance efforts.
Join us in July as we explore the meaning of privacy, what a federal privacy law in the U.S. might include, cyberthreats in the Internet of Things, medical device cybersecurity in Europe, and more. We hope you can join us.
On June 20, 2019, the Supreme Court released its long-awaited decision in PDR v. Carlton & Harris Chiropractic. The Court was expected to provide greater clarity about the extent to which litigants can challenge the Federal Communications Commission’s Telephone Consumer Protection Act interpretations in private litigation. Instead of deciding that issue, however, the Court vacated the Fourth Circuit’s ruling and remanded the case for further development. How the Fourth Circuit rules on remand may ultimately provide more insight on how much deference is owed to the FCC’s TCPA interpretations.
Join us in May as we will be speaking at the 2019 Global IAPP Summit, discussing hacking, privacy and cybersecurity and the TCPA. We hope you can join us.
Join us this month as we address questions about the groundbreaking California Consumer Protection Act, consumer trust issues, TCPA, trends in global privacy enforcement, navigating ePrivacy requirements, and the GDPR as Brexit nears.
Now that the dust has settled from the D.C. Circuit’s highly anticipated Telephone Consumer Protection Act decision in ACA International, et al, v. FCC, the Federal Communications Commission is going back to the drawing board in a new Public Notice that seeks comment on foundational TCPA issues.
Please join us for our November 2017 Privacy and Cybersecurity Events.
Join us tomorrow, October 25 for the next installment of our 2017 Internet of Things webinar series and get practical guidance on privacy compliance challenges presented by the Internet of Things.
Growing evidence suggests that existing Telephone Consumer Protection Act compliance challenges, and the current TCPA litigation landscape, are increasingly a threat to many U.S. companies – particularly small businesses that have fewer resources and could face financial ruin if targeted by a class action lawsuit. To help address this issue and support the U.S. economy, Congress and the Federal Communications Commission should revise the current TCPA framework and facilitate reasonable, practical compliance approaches for companies attempting in good faith to communicate with customers.
Please join us for our June 2017 Privacy and Cybersecurity Events.
Please join us for our March 2017 Privacy and Cybersecurity Events.
Please join us for our December 2016 Privacy and Cybersecurity Events.
Please join us for our November 2016 Privacy and Cybersecurity Events.
Please join us for our October 2016 Privacy and Cybersecurity Events.
Please join us for our April 2016 Privacy and Cybersecurity Events, including discussions on the Internet of Things, big data in healthcare, the Telephone Consumer Protection Act, international data flows, and more.
On September 11, 2015, the Federal Communications Commission Enforcement Bureau issued citations to F.N.B. Corporation and Lyft, Inc., a ride-sharing service, for Telephone Consumer Protect Act violations pertaining to the marketing rules.
On Monday, June 1, a District Court in the Northern District of California granted AOL’s motion to dismiss plaintiff Nicholas Derby’s putative TCPA class action complaint on the grounds that the complaint failed to allege facts sufficient to establish that the AOL Instant Messenger service was an automatic telephonic dialing system under the Act. Notably, the court did not wait until discovery had been conducted to determine whether the AIM service qualified as an ATDS.
FCC Chairman Wheeler has announced that he is circulating a proposal to address more than twenty pending petitions seeking clarity regarding the scope requirements under the U.S. Telephone Consumer Protection Act. He authored a blog post on the proposal and also released a fact sheet
The Hogan Lovells Telephone Consumer Protection Act (TCPA) Working Group has published an alert addressing recent TCPA litigation and regulatory compliance developments. The alert notes that the number of TCPA cases is increasing and summarizes recent decisions that provide guidance regarding what constitutes prior express consent for non-telemarketing calls under the TCPA and its regulations. The alert concludes with some regulatory compliance tips to help minimize risk.
A Telephone Consumer Protection Act (TCPA) case decided by the U.S. Court of Appeals for the D.C. Circuit has direct implications for all organizations that employ third-party providers to conduct their outbound calling and text messaging campaigns. It could also impact the extent to which courts will defer to the FCC’s guidance regarding the TCPA. In addition, on February 6, members of Hogan Lovells’ TCPA Practice will host a special webinar on recent TCPA developments and key compliance challenges for 2014.