In July 2015, a divided Federal Communications Commission (FCC) issued its omnibus Telephone Consumer Protection Act (TCPA) Order, which modified and ostensibly “clarified” numerous aspects of the TCPA, such as expanding the definition of “automatic telephonic dialing system” (more commonly referred to as autodialer) and concluding that consumer consent to receive calls may be revoked when given voluntarily. We previously wrote about that Order here and here. Many in the legal industry predicted that, in the wake of the Order, TCPA litigation would increase at an even higher rate than it already was. Boy were we right.
Indeed, this prediction was recently confirmed by a study conducted by the U.S. Chamber Institute for Legal Reform, which concluded without qualification that the Order has “invited additional TCPA litigation and triggered a significant uptick in TCPA cases.” The study began as a database of TCPA cases filed between August 1, 2015 and December 31, 2016 in which a TCPA claim was identified during the electronic docketing process. Specifically, the study found that, during the 17-month period before the Order, there were 2,127 TCPA lawsuits filed, while, during the 17-month period after the Order, there were 3,121 lawsuits filed—an increase of a whopping 46%. Notably, one-third of the 3,121 lawsuits filed are federal class actions. There is a clear cause-and-effect between the Order and the uptick in new TCPA litigations.
In his dissenting statement to the 2015 Order, now-FCC Chairman Ajit Pai stated, “in practice the TCPA has strayed far from its original purpose . . . [a]nd the FCC has the power to fix that.” Maybe the FCC will. In the meantime however, we continue to monitor developments in TCPA litigation. Please see this list of recent TCPA actions.