Latest updates

Florida court: no ATDS, no Telephone Consumer Protection Act suit
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • April 04 2018

Finding that the telephone system used by the defendant was not an automatic telephone dialling system (ATDS), a Florida federal court recently dismissed a putative Telephone Consumer Protection Act class action. This decision adds to the growing body of cases that take a practical approach to the ATDS question by evaluating the level of human intervention used to place the calls and provides further guidance on evaluating whether a system might be deemed an ATDS.

States take sides on net neutrality
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • March 28 2018

The states have taken matters into their own hands as the battle over net neutrality continues, even after the Federal Communications Commission's vote to repeal the rules. Attorney generals from 21 states and the District of Columbia recently filed a placeholder lawsuit asking that the repeal order be invalidated. In addition to the lawsuit, some states are also enacting their own versions of net neutrality.

Too soon to dismiss Telephone Consumer Protection Act action, court decides
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • March 21 2018

A Connecticut judge has denied a motion to dismiss a putative Telephone Consumer Protection Act class action, ruling that whether the faxes at issue were unsolicited remains in dispute. The decision illustrates the difficulty of having a Telephone Consumer Protection Act action dismissed at the pleading stage, even if the defence has evidence of potential consent or an established business relationship.

Table for two: restaurant's text did not violate TCPA
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • February 21 2018

A text message related to a transaction initiated by the plaintiff could not violate the Telephone Consumer Protection Act, a California federal court held in dismissing a putative class action. The court was not persuaded by the plaintiff's argument that the inclusion of a link to view dinner specials transformed the restaurant's text message from a simple confirmation of a dinner reservation into an advertisement. However, if the text had gone beyond a simple link, the decision could have gone another way.

Court rejects plaintiff's efforts to expand discovery beyond fax
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • February 14 2018

A Pennsylvania federal court recently refused to allow a plaintiff to rummage around in the defendant's records of all fax communications that it had sent within the past four years, noting that discovery cannot be used as a way of potentially putting together a separate and unrelated class action for other Telephone Consumer Protection Act violations. The court may have allowed the discovery had there been evidence of other faxes sent in the relevant period.

Potential impacts on telehealth from net neutrality repeal
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • February 07 2018

The Federal Communications Commission (FCC) recently passed the Restoring Internet Freedom Order (RIFO), repealing the FCC's 2015 net neutrality rules and shifting the responsibility for regulating the conduct of internet service providers to the Federal Trade Commission. While the RIFO's effect on video streaming seems to be at the top of most consumers' minds, telehealth experts are concerned that the decision could raise the costs of providing telehealth services.

Net neutrality: from rules to enforcement
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • January 17 2018

The recent controversial Restoring Internet Freedom Order has essentially changed net neutrality from a regime based on rules to one based on enforcement. The Federal Trade Commission's role will be to protect against potential consumer and competitor harm and state attorney generals are expected to be just as involved in enforcement efforts. With the order's structure now based on transparency, the onus will shift to enforcers to ensure that internet service providers deliver what they promise.

Dish Network's Telephone Consumer Protection Act nightmare continues
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • January 03 2018

A $61 million judgment in a Telephone Consumer Protection Act class action will stand after a federal court judge denied Dish Network's motion to reduce or set aside the trebled damages award. The plaintiff had originally filed suit against Dish Network, alleging that he received dozens of calls on its behalf despite the fact that his number was registered on the national Do Not Call Registry. Although Dish filed a motion to set aside the verdict based on res judicata, the court was not persuaded.

Florida federal court affirms FTC's available remedies
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • December 06 2017

In a recent case involving a purported time-share scam, a Florida federal court ruled that disgorgement and refunds are remedies available to the Federal Trade Commission (FTC). The defendants filed a motion for summary judgment, arguing that the equitable relief sought by the FTC was unavailable pursuant to the statutes pled in the complaint. However, the court found no shortage of case law recognising the availability of the equitable relief sought by the FTC.

Human intervention means program not ATDS, Illinois court rules
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • November 29 2017

A recent Illinois federal court decision adds to a growing body of law stating that a click-to-call dialling system using human intervention is not an automatic telephone dialling system (ATDS) for Telephone Consumer Protection Act purposes. While uncertainty abounds as to what is an ATDS after the Federal Communication Commission's July 2015 ruling, this decision can help to provide some measure of comfort to companies using click-to-call dialling systems.

Eight-figure settlements continue for Telephone Consumer Protection Act disputes
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • November 15 2017

A US district judge recently granted final approval to a $14.5 million deal involving American Eagle Outfitters to end multiple lawsuits accusing the national retailer of sending thousands of spam texts to more than 600,000 consumers, finding that a statutory violation alone was sufficient to establish a concrete injury. The case demonstrates that multimillion-dollar settlements continue to be a popular solution to Telephone Consumer Protection Act class actions.

Reassigned numbers: commenters embrace database, split on safe harbour
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • November 08 2017

The Federal Communications Commission recently released a notice of inquiry asking for feedback on handling unwanted phone calls to reassigned numbers. Feedback included questions about the ways in which providers could report number reassignments and what information should be reported. Of the dozens of responses, the majority appeared to support the commission's plan to establish a central database, although opinions differed on the details.

Colts fail to score motion to dismiss eavesdropping suit
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • November 01 2017

In 2012 Alan Rackemann downloaded a mobile application offered by the National Football League team. When Rackemann later learned that the app used beacon technology that activated his device's microphone to temporarily record portions of audio, he filed suit, alleging that the Colts, along with two audio technology development companies, had run afoul of the federal Wiretap Act. The defendants moved to dismiss the suit, but the US District Court recently denied the motion.

Customer's typo costs Uber $20 million in Telephone Consumer Protection Act dispute
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • October 25 2017

Uber recently agreed to pay $20 million to settle a case that began with a customer's typo. The plaintiff alleged that Uber had sent her a series of unsolicited text messages urging her to complete a sign-up process that she had never initiated. According to Uber, another user had mistakenly transposed digits of their own phone number during the sign-up process, causing the plaintiff to erroneously receive the text messages.

Surprising results for US chamber statistics on Telephone Consumer Protection Act cases
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • October 18 2017

During a 17-month period after the Federal Communication Commission (FCC) July 2015 order, the US Chamber Institute for Legal Reform compiled a database of 3,121 Telephone Consumer Protection Act cases filed between August 2015 and December 2016 to examine the trends of litigation under the act. The chamber found that such litigation has increased 46% since the FCC's July 2015 declaratory ruling and that more than 30% of the cases brought are class actions.

Oral, partial revocation valid under Telephone Consumer Protection Act, Eleventh Circuit rules
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • October 11 2017

Consent can be partially revoked pursuant to the Telephone Consumer Protection Act, the US Court of Appeals for the Eleventh Circuit recently held. Although the statute itself is silent on the issue of revocation, the panel looked to a 2014 decision where it had held that a consumer may orally revoke her consent to receive automated phone calls, inferring that Congress intended for the act to incorporate the common law understanding of consent.

Telephone Consumer Protection Act violation where marketing is the 'one purpose' of calls
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • October 04 2017

On remand from the US Court of Appeals Eighth Circuit, a Missouri federal judge found that robocalls voiced by Mike Huckabee violated the Telephone Consumer Protection Act because they had the primary purpose of advertising a movie and not conducting a political survey. The court found that even if consumers had provided their phone numbers for the purpose of receiving calls about religious freedom or liberty, they had not consented to receiving calls about the movie.

Text completing transaction does not violate Telephone Consumer Protection Act, court rules
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • September 20 2017

A text message does not constitute telemarketing pursuant to the Telephone Consumer Protection Act where it was sent to complete a transaction, according to a recent federal court decision. Further, where a prospective purchaser has entered his or her contact information in an online form and submitted it (even if the order is not completed), the individual has provided prior express consent for non-marketing communications. This decision could provide comfort to businesses seeking to send such communications.

FCC seeks comment on reassigned numbers
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • September 13 2017

In a new notice of inquiry approved by the Federal Communications Commission (FCC) at the July 2017 open meeting, the agency requested feedback on handling unwanted phone calls to reassigned phone numbers. FCC Chair Ajit Pai said that solving the problem of reassigned numbers "would save everyone a lot of trouble". Businesses have already faced the threat of liability under the Telephone Consumer Protection Act for reaching out to reassigned numbers.

Lacking list of recipients, Sixth Circuit denies class certification
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • September 06 2017

With the death of the Solicited Fax Rule, consent is becoming a key issue in many Telephone Consumer Protection Act fax cases, particularly where the faxes are sent to existing or former customers. In a recent junk fax case, the Sixth Circuit declined to certify a class of tens of thousands of plaintiffs, finding that the question of consent in a Telephone Consumer Protection Act class action requires an individualised inquiry and that without a list of recipients the class cannot be ascertained.

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