Category Archives: Telemarketing

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When Skiptracing + Autodialing = $267 Million

Last week, companies engaged in debt collection were not-so-gently reminded that making calls using an automated dialer to any number other than the one provided by the consumer is incredibly risky—and in Rash Curtis & Associates’ case, a $267 million risk. Calls made to phone numbers with the consumer’s prior express consent are not prohibited … Continue Reading

Eleventh Circuit Holds That A Single Text Message Does Not Satisfy Injury In Fact Requirement for Standing Under the TCPA

Many children, including myself, were taught the childhood mantra: “Sticks and stones may break my bones, but words will never hurt me.” The chant intended to be a retort to name calling—a declaration that you were above the insults. But what about text messages? Could a single text message hurt me in a way that … Continue Reading

Things Are Buzzing in the Beehive State

Utah traditionally has been a hive of activity in the telemarketing and “how to make money” education verticals.  The Utah Consumer Protection Division (the “Division”) and the Division’s lawyers at the Office of the Attorney General appear to be trying to change that.  Industry participants have been watching closely a lawsuit filed by the attorney … Continue Reading

Anti-Robocall Principles Agreed to by Carriers and State AGs

A bipartisan, public/private coalition of 51 attorneys general and 12 phone companies have agreed to create the “Anti-Robocall Principles,” a set of eight principles to fight “illegal robocalls” that the phone companies have voluntarily agreed to adopt by incorporation, or continued incorporation into their business practices.  The principles are available here and press release is … Continue Reading

What is “Incidental”? Ninth Circuit Provides Guidance on How to Determine if a Fax is an “Advertisement” Under the TCPA’s Junk Fax Provisions

On May 17, 2019, the U.S. Supreme Court announced it would not hear an appeal in Supply Pro Sorbents, LLC v. RingCentral, Inc., apparently satisfied with a Ninth Circuit ruling that the inclusion of a one-line company identifier on a fax cover page was not in violation of the TCPA’s bar on unsolicited advertisements. In … Continue Reading

fore·shad·ow (verb). Be a warning or indication of (a future event): FCC Commissioner O’Rielly Speech Suggests What’s in Store for the TCPA

On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and … Continue Reading

Online Lender Settles with FTC on UDAP, TSR, and EFTA Claims

The Federal Trade Commission’s settlement with an online consumer lending platform, Avant LLC, highlights the importance of legal and regulatory compliance in the fintech space, including—perhaps most importantly—what happens after a loan is made. According to the Commission’s complaint, Avant offered personal consumer loans through its website. The complaint notes that although the loans were … Continue Reading

Who Made the Call? Applying the Fundamentals of Pleadings to TCPA Actions

Twombly and Iqbal—two names that invoke fond memories of the first year of law school for the (much) younger attorneys—have defined the bar that each plaintiff must meet to survive a Rule 12(b)(6) motion to dismiss. Walk into any first-year civil procedure class and you’ll hear the students muttering the following like a nursery rhyme … Continue Reading

“The Number on the Matchbook is Old and Faded”: Federal Court Issues First-of-Its-Kind Ruling on Reassigned Number Liability Under the TCPA

We love us some Jim Croce here at Venable and his 1972 ballad, Operator (That’s Not the Way It Feels), is resonating with us right now. In Operator, Croce sings about a man confessing to an operator about his love for an ex-girlfriend. He needs the operator’s help to find a telephone number for his … Continue Reading

The Definition of Autodialer Under the TCPA: A Tale of Two Courts

What is an autodialer under the TCPA? That’s a good question and one with which courts across the country are struggling as much as Charles Darnay struggled with his aristocratic heritage leading up to the French Revolution. My memory of the CliffsNotes to the Dickens classic aside, fortunately, the Federal Communications Commission (“FCC”) is, as … Continue Reading

Predictive Dialer Prediction Comes True: Court Rules that ACA International Vacated Previous FCC Predictive Dialer Decisions and Holds that Predictive Dialers are Not Autodialers Under the TCPA

Technology is present in nearly everything we do and not only in the form of a smartphone. Now, when people brush their teeth, turn on the car, or tune an instrument, there’s likely some form of digital technology at work. With all of these activities, it can be unclear when the user is manually performing … Continue Reading

Slimming Down: Second and Third Circuits Construe TCPA Autodialer Definition Narrowly But Still Grapple With Its Contours

Late June was busy in the Telephone Consumer Protection Act (TCPA) litigation world, with the U.S. Courts of Appeals for the Second and Third Circuits weighing in on an issue that arises all the time with the TCPA – what is and is not an autodialer. As readers of this blog know, earlier this year … Continue Reading

FCC Seeks Comments on TCPA After D.C. Circuit Ruling

The FCC is going back to the drawing board—and it wants some help. Earlier this week, the Commission announced that it is seeking comments “on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision” of the U.S. Court of Appeals for the D.C. Circuit in ACA … Continue Reading

Court to Agency: Is That Your Final Answer on Soundboard Technology?

In a blow to the soundboard industry, the D.C. Circuit recently ruled in Soundboard Association v. FTC, No. 1:17-cv-00150 (D.C. Cir. Apr. 27, 2018) that the Federal Trade Commission’s November 2016 opinion letter, which reclassified soundboard technology as “robocalls” under the Telemarketing Sales Rule (TSR), is not subject to judicial review. We previously blogged about … Continue Reading

Start Replying with “STOP”

We blogged in February about Epps v. Earth Fare, in which the Central District Court of California dismissed a lawsuit under the Telephone Consumer Protection Act (TCPA) because the plaintiff revoked her consent to receive text messages in an unreasonable manner. In that case, the plaintiff attempted to unsubscribe from further messages—in which case additional … Continue Reading

This Argument Is No Longer in Service: Did FCC and FTC Drop the Issue of Reassigned Numbers as a Solution to Robocalls?

On March 23, 2018, the FCC and FTC hosted a joint forum to discuss the issue of robocalls. Consisting of three panels and remarks from key leadership of both agencies, the event marked a significant step in agency cooperation to mitigate consumer frustration from unwanted calls. The panels focused on three issues: (1) challenges facing … Continue Reading

Another TCPA Decision Involving Nonprofits Results in Dismissal of Plaintiff’s Claims

The Telephone Consumer Protection Act (TCPA) has been making news of late, with the U.S. Court of Appeals for the District of Columbia’s partial rejection of a Federal Communications Commission rulemaking grabbing most of the headlines. We reported on that here. It is understandable that the D.C. Circuit’s decision has captured the attention of telemarketers … Continue Reading

Florida Delivers Message to Telemarketers: No Unsolicited Ringless Voicemails Starting July 1, 2018

It’s been a busy few weeks with respect to the federal Telephone Consumer Protection Act (TCPA), with recent decisions handed down by the D.C. Circuit in ACA International v. FCC and the Ninth Circuit in Romero v. Department Stores National Bank further shaping the contours of the federal law. However, lest we forget, states have … Continue Reading

March Madness: Long-Awaited D.C. Circuit Decision Strikes Down Parts of the FCC’s 2015 Omnibus TCPA Order

After keeping us waiting for nearly a year and a half after oral argument in October 2016, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit last week weighed in on the Federal Communications Commission’s (FCC) 2015 Omnibus Telephone Consumer Protection Act (TCPA) Order, which we previously summarized. The court was … Continue Reading

TCPA Plaintiffs Standing Tall After Ninth Circuit Decision

We recently blogged about the possibility of courts limiting serial litigants’ standing under the Telephone Consumer Protection Act (TCPA) based on them not falling within the statute’s “zone of interest” and, thus, not having standing under Article III of the U.S. Constitution. Nate Silver’s job clearly isn’t threatened by our predictive blog posts, because in … Continue Reading

Dose of Relief for Healthcare Entities: Second Circuit Finds Hospital Had Sufficient Consent Under the TCPA

Some people really do not like being told to get a flu shot and, in Latner v. Mount Sinai Health System, Inc., 2018 WL 265085 (2d Cir. amended decision Jan. 9, 2018), a man sued his hospital over it. Well, not exactly. Plaintiff Daniel Latner claimed that a text message sent by a third party … Continue Reading

Telemarketing by Charity Fundraisers Remains an FTC Enforcement Priority

The FTC’s Northwest Regional Office has, for decades, led federal law enforcement efforts to investigate and shut down alleged fraud in the charity fundraising industry (state attorneys general are even more active in this space, as we’ve noted in previous writings). While the Northwest Region was somewhat active in the 1990s and early 2000s, its … Continue Reading
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