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.
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.
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.
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.
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.
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.
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.
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.
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.
Continuing the good news for Telephone Consumer Protection Act defendants on the fax front, the US Court of Appeals for the DC Circuit recently refused to postpone its invalidation of the Federal Communication Commission's Solicited Fax Rule pending an appeal to the Supreme Court. Created in 2006, the rule required that even fax advertisements sent with a recipient's prior express invitation or permission contain an opt-out notice with specified information.
The Federal Communications Commission (FCC) recently proposed a $120 million fine against an individual who made more than 96 million robocalls over a three-month period by imitating the area code of call recipients to trick them into answering the phone. Now that it has issued its first forfeiture under the Truth in Caller ID Act, the FCC has noted that future spoofing cases could involve higher penalties in light of their particular facts and circumstances.
A petition filed with the Federal Communications Commission (FCC) requested that the agency declare that the delivery of a voice message directly to a voicemail box does not implicate the Telephone Consumer Protection Act (TCPA). However, the petition was withdrawn. Without an FCC ruling on this issue, whether ringless voicemail is covered by the TCPA remains unclear. While no ruling is better than an adverse ruling, great uncertainty remains.
An appellant recently alleged that Poshmark, a mobile app that allows users to browse, buy and sell clothing and accessories, sent him two text messages in 2015 inviting him to view and buy certain items, and alleged that the app had violated the Telephone Consumer Protection Act. However, the judge determined that text messages initiated by a user inviting friends to use a fashion-themed mobile app were not actionable against the operator of the app.
The US Court of Appeals for the Seventh Circuit recently tossed a Telephone Consumer Protection Act suit against a retailer over a text message marketing campaign. The case highlights that the scope of consent provided by a consumer continues to be an important issue. Further, while a consumer does not consent to any and all contact by providing his or her cellphone number, he or she does consent to contact relating to the reason that the number was provided.
An Illinois federal court judge has dismissed a complaint brought under the Telephone Consumer Protection Act by an applicant against a company to which she had applied for employment. The decision is a victory not just for employers concerned about using modern technology to reach out to job applicants, but for Telephone Consumer Protection Act defendants generally, as it demonstrates that a consumer's silence or inaction cannot revoke consent.
The California federal courts recently saw a pair of new suits filed by the same plaintiff on the same day against Marriott International and Gallup Inc. Both suits claimed that the hotel chain and the polling company had made unsolicited calls to the plaintiff's cellphone number, despite the fact that it had been registered on the National Do Not Call Registry since 2004. These complaints underscore the importance of good compliance to ward off such claims.
Just days after the US Circuit Court of Appeals for the DC Circuit held that it would not reconsider its ruling upholding the net neutrality rules, a group of Republican lawmakers filed a bill to rescind them. The Restoring Internet Freedom Act would nullify the Federal Communications Commission's 2015 Open Internet Order and prohibit the agency from issuing a similar rule in the future, pursuant to the Congressional Review Act.
Retailers communicate with their customers frequently as an essential part of their business. While these communications are typically expected and desired, this does not shield even the most well-intentioned companies from the explosion of Telephone Consumer Protection Act litigation seen over the past few years. A recent Ninth Circuit decision underscores why good compliance is key and also lends clarity to certain key parameters, such as the scope of consent and revocation thereof.
President Trump recently appointed Commissioner Ajit Pai to serve as the next chair of the Federal Communications Commission (FCC). Pai has been a vociferous critic of the Democratic-controlled FCC on many issues, most notably on Telephone Consumer Protection Act rulings and orders. His appointment will no doubt result in significant changes to the FCC's position on the myriad of issues related to the act.