Following confusion in both the courts and the FCC, Congress is now looking to step in and resolve disputed provisions of the Telephone Consumer Protection Act (TCPA). As readers of this blog know, earlier this year in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the D.C. Circuit set aside the FCC’s interpretation of “automatic telephone dialing system” (ATDS) as it was defined in the FCC’s 2015 TCPA Order (2015 Order). In the same decision, the D.C. Circuit also vacated the 2015 Order’s approach to calling reassigned and wrong numbers. As a result, it’s now unclear what the relevant standard is for these provisions of the TCPA.

So far, courts have found addressing the fallout of the ACA Int’l decision to be Mission Impossible. They’re split as to whether the FCC’s prior 2003, 2008, and 2012 orders are still valid or whether the D.C. Circuit’s decision also vacated those rulings. One common question is whether all predictive dialers should be considered ATDS or if the definition should only encompass automatically dialed numbers that are randomly or sequentially generated. The District of Arizona, for example, has said that “this Court will not defer to any of the FCC’s . . . [earlier orders] regarding the first required function of an ATDS . . . .” Herrick v. GoDaddy.com, No. CV-16-00254, 2018 WL 2229131, at *7 (D. Ariz. May 14, 2018). See also Marshall v. CBE Group, Inc., No. 2:16-cv-02406, 2018 WL 1567852, at *4 (D. Nev. Mar. 30, 2018). The Northern District of Georgia, however, applied the 2003 Order in its decision on the issue. Maddox v. CBE Group, No. 1:17-cv-1909, 2018 WL 2327037, at *4–*5 (N.D. Ga. May 22, 2018). Meanwhile, the Southern District of Florida held that the FCC’s position is unclear and either interpretation of ATDS is acceptable. Reyes v. BCA Fin. Services, No. 16-24077, 2018 WL 2220417, at *9 (S.D. Fla. May 14, 2018). To sum it up, the ACA Int’l decision left courts confused as to what extent predictive dialers fall under the definition of ATDS and subsequently the TCPA.


Continue Reading Congress Takes TCPA Action: Clarifying or Confusing?

checking off agenda itemsOn April 11, 2018, the Consumer Product Safety Commission (CPSC) will hold its annual Agenda and Priorities Hearing to discuss fiscal years 2019 and 2020. The upcoming hearing offers a valuable opportunity for all stakeholders to help shape the CPSC’s near-term agenda. CPSC has broad jurisdiction over 15,000 product lines, including toys, cribs, power tools, ATVs, cigarette lighters, small appliances, furniture, electronics, and household products. For companies that sell, manufacture, or import consumer products, this is a chance to engage directly with the CPSC and have their concerns and suggestions heard.

CPSC has explicitly invited the public to submit comments regarding which issues it should prioritize and dedicate resources to and, conversely, which issues the Commission should consider de-emphasizing in the upcoming fiscal years.


Continue Reading CPSC’s Annual Agenda and Priorities Hearing Is an Important Opportunity for Stakeholders

virtual currencyThe Senate Committee on Banking, Housing, and Urban Affairs held a hearing on Tuesday on virtual currencies and the role of the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) in overseeing the virtual currency industry. Witnesses included SEC Chairman Jay Clayton and CFTC Chairman Christopher Giancarlo.

A key takeaway of the hearing was a concern among regulators and Committee members of opportunistic fraud taking place amid the hype around virtual currencies, also commonly known as cryptocurrencies.

Among these concerns were those involving celebrity endorsements of token sales in Initial Coin Offerings (ICOs). In some cases these sales may be fraudulent. CFTC Chairman Giancarlo noted one example where his agency took action against a company that solicited customers for a virtual currency known as My Big Coin. Mr. Giancarlo stated that within the agency that coin came to be known as “My Big Con,” as the company used the funds to purchase personal luxury items rather than using the funds for their purported purposes.


Continue Reading Senate Banking Committee Holds Hearing on Virtual Currencies – Warns of Celebrity Endorsements

Is your website covered by the Americans with Disabilities Act? The short answer is: possibly. This area of the law continues to evolve, with differences from jurisdiction to jurisdiction based on the type of website. But make no mistake: lawsuits alleging lack of website accessibility are hot. The most common allegation is that the company

For Medical Use OnlyAs of this last election, eight states and our very own District of Columbia have legalized or decriminalized recreational marijuana consumption. The rest of the states have either passed laws only legalizing medical marijuana consumption or marijuana consumption continues to be unlawful. Similarly, marijuana use continues to be illegal at the federal level (so. if you’re in DC. don’t light up on federal property.) However, it seems likely that the number of states decriminalizing marijuana will continue to grow. There are, of course, a whole host of legal issues surrounding the legalization of marijuana, many of which have probably not yet been fully fleshed and thought out. However, since this is an advertising blog, we were curious to see to what extent states have already begun to regulate the advertising of legal marijuana. Somewhat to our surprise, many of the states where marijuana is legal have fashioned some rules around its advertising. In many cases, these rules are similar to those that have been fashioned around the sale of other adult products such as alcohol and tobacco.

Continue Reading Marijuana Advertising Sparks Legal Questions

The White HouseThe President’s recent Executive Order on reducing regulation and controlling regulatory costs represents the greatest potential change in federal regulatory policy since President Reagan’s 1981 Executive Order on federal regulation first provided for White House oversight of the regulatory process.

The Order requires three main things, with certain exceptions:


Continue Reading Regulatory Roll-Back: The President’s New “One In-Two Out” Regulatory Policy