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 its Chairman recently described it, “poised” to provide clarity on what types of devices fall within the definition as part of an ongoing declaratory ruling proceeding. Nonetheless, several courts recently have issued divergent decisions regarding technology that constitutes an autodialer under the statute.

The Best of Times: On September 21, 2018, the U.S. District Court for the District of New Jersey held, in Fleming v. Assoc. Credit Servs., Inc., No. 16-3382, 2018 WL 4562460 (D.N.J. Sept. 21, 2018), that that the defendant’s calling platform (LiveVox’s Human Call Initiator (“HCI”)), which “dials numbers from a list that was not randomly or sequentially generated when the list was created” does not qualify as an “automatic telephone dialing system” (“ATDS” or autodialer) under the TCPA based on the statutory definition. In other words, because HCI did not randomly or sequentially generate the numbers that ultimately were contained on the list of numbers called, the platform did not fit the ATDS definition. Specifically, the court explained: “The phrase ‘using a random or sequential number generator,’ I believe, applies to the manner in which the numbers make their way onto the list – not to the manner in which the numbers are dialed once they are on the list.”


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

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 the action versus when it’s become automated. Courts have struggled with this same issue while applying the Telephone Consumer Protection Act (TCPA) after the D.C. Circuit set aside the FCC’s interpretation of an automatic telephone dialing system (ATDS) in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). As we’ve outlined in previous blogs, ACA International clearly invalidated the ATDS standard from the FCC’s 2015 TCPA Order, but, since that decision, district courts have grappled with the validity of the FCC’s 2003 and 2008 predictive dialer rulings, which concluded that predictive dialers that dial from set lists of specific telephone numbers are autodialers.

While several courts have ruled on this issue, there still isn’t a consensus on the proper approach. Last week, however, the Northern District of Illinois issued a well-reasoned and detailed decision that may help guide that debate – Pinkus v. Sirius XM Radio, Inc., No. 1:16-cv-10858 (N.D. Ill. July 26, 2018). The court in Pinkus had to wrestle with the exact set of circumstances that ACA International has thrown into confusion: namely, whether predictive dialing technology qualifies as an ATDS if it does not randomly or sequentially generate the phone numbers to be called. The 2015 FCC Order that was struck down in ACA International, as well as previous FCC orders, included this type of technology under the definition of ATDS.


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

gavel and question markLate 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 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, however, the court left open the issue of how to define an ATDS. Now, two other Circuits have jumped into the mix, with opinions showing that defining what constitutes an ATDS is easier said than done.

In King v. Time Warner Cable, Case No. 15-2474-cv, 2018 U.S. App. LEXIS 17880 (2d Cir. June 29, 2018), the plaintiff received 153 collection calls from Time Warner Cable through its “interactive voice response” calling system, which automatically identified customers whose accounts were 30 days past due, called their telephone numbers, and left prerecorded messages if there were no answers. There was no dispute that the defendant’s calling lists were not created by a human; in fact, there was no human involvement at any stage of the customer selection, list compilation, or dialing processes.


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

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?

CommentsThe 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 International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

As we have written previously, in March the D.C. Circuit issued its long-awaited ruling on the FCC’s 2015 Omnibus Telephone Consumer Protection Act Order (2015 Order) in which the Commission set out to resolve 21 requests for clarification about the TCPA and related rules and orders. The D.C. Circuit’s decision dealt a partial blow to the 2015 Order, setting aside the FCC’s interpretation of “automatic telephone dialing system” (“autodialer” or “ATDS”) as overly broad and vacating the agency’s approach to calling reassigned numbers—i.e., restrictions on calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The D.C. Circuit vacated in particular the FCC’s reading of the statute to permit a one-call safe harbor for callers to determine whether a number had been reassigned to a nonconsenting person. The court, however, did uphold the FCC’s conclusion that parties may revoke their consent through any “reasonable means” clearly expressing a desire to receive no further messages from the caller. It also upheld the scope of the Commission’s exemption for time-sensitive, healthcare-related calls.


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

telemarketing lawsIn 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 the underlying litigation and FTC’s November 2016 opinion letter here. Soundboard technology allows telemarketers to communicate in real-time, dynamic, two-way conversations utilizing pre-recorded audio clips­­­­. These differ from the type of pre-recorded message contemplated by the drafters of the TSR in that there is a live agent monitoring the call and selecting the appropriate clip depending on the situation. The FTC’s 2016 opinion letter rescinds a 2009 letter that concluded that calls made with soundboard technology are not subject to the same restrictions as robocalls under the TSR.
Continue Reading Court to Agency: Is That Your Final Answer on Soundboard Technology?

Opting OutWe 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 calls or texts would implicate the TCPA—but she did so with a verbose text message instead of simply replying “STOP,” as each of the defendant’s texts clearly instructed. The court found these allegations failed to state a claim under the TCPA because of the unreasonable nature of the plaintiff’s opt-out.

As further discussed in our February blog, the TCPA is a popular tool of serial plaintiffs, who have both a private right of action under the TCPA and the ability to bring about the alleged harm with relatively little effort by soliciting unconsented-to calls or texts. However, the District of New Jersey recently dismissed a case that was very similar, factually, to Earth Fare, adding to a growing body of decisions that disfavors plaintiffs who intentionally avoid the familiar supplied text message opt-out mechanism—i.e., replying “STOP.” In Rando v. Edible Arrangements International, LLC, No. 1:17-cv-00701 (D.N.J. Mar. 28, 2018), the plaintiff allegedly “withdrew consent” through wordy text messages instead of replying “STOP” as instructed. Here, the court determined that those actions, under the totality of the circumstances, were not a “reasonable means” of revoking consent. As a result, the plaintiff had no claim under the TCPA.


Continue Reading Start Replying with “STOP”

telemarketing lawsOn 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 consumers and industry; (2) recent regulatory and enforcement efforts; and (3) tools and solutions for consumers. FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen delivered opening remarks, with FCC Commissioners Mignon Clyburn and Brendan Carr, as well as FTC Commissioner Terrell McSweeny, also speaking.

Panelists identified number spoofing as the biggest issue magnifying the robocall problem. As a result of spoofing, consumers have lost trust in answering the phone, leading to a significant rise in call completions not occurring. Telephone providers have attempted to combat the spoofing problem by screening calls, but there is skepticism as to the long-term viability of screening mechanisms for fear that robocallers will learn to circumvent screens and consumer trust might further erode due to the lack of transparency in what calls are being blocked. Businesses in particular have felt the frustration of lost consumer trust, and panelists claimed that legitimate business calls have declined by 20-30%. Representatives from the communications industry called for technology that would provide an intercept code for businesses to receive notice that their calls had been blocked, but stressed that transparency on the consumer side, too, was paramount.


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

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 and TCPA practitioners. However, nonprofit organizations and for-profit companies that help nonprofits reach consumers via telephone and text message should also take note of a less publicized recent TCPA opinion.

For years, Anthem Foundation, Inc. has supported the American Heart Association (AHA) and its “Hands-Only CPR” campaign to help people respond to a cardiac arrest event. Anthem Foundation is a 501(c)(3) charitable organization that serves as the philanthropic arm of for-profit insurance company Anthem, Inc. The plaintiff in Reese v. Anthem, Inc. admitted that she had provided her cellular phone number to AHA in order to receive “monthly CPR reminders, healthy messaging information, and [questions from AHA].” According to her amended complaint, though, the plaintiff and unnamed class members allegedly were “bombarded” with unwanted text messages that contained only “vacuous” pieces of medical information. Moreover, because the text messages stated “AHA/Anthem Foundation” and because Anthem Foundation’s name and logo appeared on AHA’s Hands-Only CPR webpages, the plaintiff believed that the ostensibly informational text messages actually served as pretexts for an advertising campaign benefiting Anthem, Inc. and Anthem Foundation.


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