TCPA

Subscribe to TCPA via RSS

Last week another court used McKesson and Loper Bright to limit requirements under the Telephone Consumer Protection Act (TCPA). Following the Fifth Circuit decision we discussed earlier this month, a federal court in Maryland held that the Federal Communications Commission (FCC) lacks the authority to require businesses to obtain prior express written consent to send autodialed and prerecorded calls and texts under the TCPA.

In Bradley v. DentalPlans et al., the district court cited recent case law from the Fifth and Eleventh Circuits that has curtailed the FCC’s ability to interpret the TCPA’s “prior express consent” requirement.

FCC Authority Challenged in TCPA Interpretation

The court also noted recent case law in which the Fourth Circuit emphasized that that an agency must be delegated clear authority to both implement and interpret the statute at issue. Aligning with the Fifth Circuit’s decision, the Maryland court determined that Congress has only required prior express consent, and the FCC could not take a more expansive interpretation and impose a prior express written consent requirement.

Continue Reading TCPA Decision Weakens FCC Written Consent Requirement for Telemarketing

Texas’s amended telemarketing registration law takes effect on September 1. Although the law is not new, the legislature expanded it to apply to text messages. Under Texas’s existing law, a company that makes telephone solicitations to or from Texas must obtain a registration certificate for each business location where it makes those telephone solicitations. Until now this requirement applied to outbound calls, but beginning September 1 it will also apply to outbound marketing text messages.

Certain types of entities and telephone solicitation activities are exempt from the registration requirement, such as communications soliciting food sales; soliciting businesses to purchase items for resale; soliciting former or current customers; and telephone solicitations for purchases that will be completed at in-person sales presentations.

Continue Reading Compliance Deadline of September 1 for Companies Sending Texts: Telemarketing Registration in Texas

The Telephone Consumer Protection Act (TCPA) continues to be hotly litigated by class action plaintiffs’ attorneys, with filed cases increasing significantly over the last year. Last month, the Supreme Court ruled in McLaughlin Chiropractic Associates v. McKesson Corp. that federal district courts have the power to ignore the Federal Communications Commission’s (FCC) interpretations of the TCPA and to independently decide what the TCPA requires. The decision (which should not come as much of a surprise after the Loper Bright holding) concluded that the federal Hobbs Act does not demand that district courts absolutely defer to the FCC’s interpretations of the TCPA in enforcement proceedings, stating:

In an enforcement proceeding, a district court must independently determine for itself whether the agency’s interpretation of a statute is correct. District courts are not bound by the agency’s interpretation, but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation. 

Continue Reading The Future of the Telephone Consumer Protection Act in the Wake of Supreme Court’s Decision in McLaughin Chiropractic v. McKesson

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit.

Telephone and text message marketing is subject to complex litigation risks and regulatory challenges, requiring careful compliance. Federal laws like the Telephone Consumer Protection Act (TCPA) and state-specific laws regulate marketing calls and texts, focusing on the use of autodialers, prerecorded messages, and consent requirements.

Continue Reading Telemarketing and Texting

As we recently previewed, the Federal Communications Commission (FCC) published its Proposed Rule that would codify its updated guidance on the Telephone Consumer Protection Act (TCPA). The TCPA regulates calls and text messages sent using automated technology and is frequently litigated. Below are the major proposed rule changes on which the FCC seeks comment.

Continue Reading FCC Releases Proposed Rule for Codifying Updates to the TCPA

The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking intending to strengthen consumers’ ability to revoke consent to receive both robocalls and robotexts, in addition to strengthening callers’/texters’ obligations to honor such requests in a timely manner.

The Telephone Consumer Protection Act (TCPA) restricts callers from making robocalls and robotexts unless they have received the prior express consent of the called party, subject to a couple of exemptions. The FCC’s proposed action would broaden a consumer’s ability to revoke consent in “any reasonable way.” For example, simply using words such as “stop,” “revoke,” “end,” or “opt out” in response to a call or text would create a presumption, absent contrary evidence, that the consumer has revoked consent.

Continue Reading FCC Proposes Codifying New TCPA Consent Rules in Notice of Proposed Rulemaking

Last month, Florida Gov. Ron DeSantis signed the much-anticipated amendment to the Florida Telemarketing Solicitation Act (FTSA) into law, significantly limiting the ability of private plaintiffs to file telemarketing lawsuits under the FTSA. While this will undoubtedly stem the tide of lawsuits under Florida’s law, class action plaintiffs’ attorneys have wasted no time in finding new states to file suit.

Less than a week before Florida amended the FTSA, a plaintiff filed the first lawsuit under Oklahoma’s Telephone Solicitation Act (OTSA), Streater v. WhaleCo, Inc. The lawsuit challenges text messages sent by WhaleCo., the operator of an online marketplace, alleging violations of the Telephone Consumer Protection Act and the OTSA. According to the complaint, the defendant sent multiple texts with coupon codes to the plaintiff to “advertise and call attention to Defendant’s products and related services,”

Continue Reading Florida Limits Its Telemarketing Law, but Other State Laws Continue to Gain Traction

Last month, Florida governor Ron DeSantis signed into law amendments to the Florida Telephone Solicitation Act (FTSA) that scale back the scope and reach of the statute, bringing it in line with federal TCPA standards and providing needed comfort to good faith marketing companies operating in Florida.

Since the last statutory changes in July 2021, the FTSA has severely impacted telemarketing and text marketing businesses marketing to Florida residents and otherwise conducting business in the state. Like the federal Telephone Consumer Protection Act (TCPA), the FTSA prohibits using automated dialers to call or text consumers without their consent.

The Florida law also enables consumers to recover $500 per call and provides for up to $1,500 in treble damages for willful or knowing violations, plus reasonable attorney’s fees and costs. To date, the FTSA has also had much more lenient standards for bringing a claim, resulting in Florida being a hotbed of state-level litigation in the area.

Continue Reading Florida Adopts Changes to the Florida Telephone Solicitation Act

Last week, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking proposing to “ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.”

According to the FCC, the proposed rule’s intent is to prevent lead generators from obtaining consent to receive calls and texts from multiple “partner companies” identified through a hyperlink rather than on the same page where consent is obtained. Implementing this rule could drastically change the way lead generators obtain consent for marketing calls and texts under the Telephone Consumer Protection Act (TCPA).

Continue Reading FCC Proposes Rule to “Close the Lead Generator Loophole,” with Business-Changing Ramifications

Last week, a magistrate judge in U.S. District Court for the Western District of North Carolina dismissed a Telephone Consumer Protection Act (TCPA) lawsuit brought by a plaintiff who claimed calls made by an insurance lead generator to her cell phone number, which was registered on the national Do Not Call (DNC) registry, were unlawful. The decision takes a view contrary to that of at least one other district court in the Fourth Circuit, but sides with a district court in Texas in finding that the do not call prohibitions of the TCPA do not encompass cell phones.

Does this latest decision, Gaker v. Q3M Insurance Solutions et al., mean that telemarketing calls to cellphone numbers listed on the national DNC list are actually OK? Probably not. For starters, since 2003, the Federal Communications Commission (FCC) has allowed cell phone numbers to be registered on the DNC list and interpreted the TCPA’s do-not-call prohibitions to encompass cell phone numbers. Other courts have followed the FCC’s lead in this matter. However, the judge’s reasoning in the Gaker case is interesting to consider, particularly for anyone following a textualist reading of Congress’s laws.

Continue Reading North Carolina Judge Says Cell Phones Not Subject to Federal Do-Not-Call Protections