Finally, The Ninth Circuit Endorses Narrower Definition of Automatic Telephone Dialing System Under the TCPA
On November 16, the Ninth Circuit issued a decision affirming the dismissal of a lawsuit on the grounds that to qualify as an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA) the telephone system must randomly or sequentially generate telephone numbers, not just any numbers....
By: Troutman Pepper

FCC Declares Ringless Voicemails Are Subject to TCPA’s Robocall Restrictions
In a recently issued ruling, the Federal Communications Commission (FCC) declared that “ringless voicemails” are “calls” subject to the requirements of the Telephone Consumer Protection Act (TCPA). Ringless voicemail technology delivers messages directly to wireless users’ voicemail boxes without ringing their devices. The FCC’s new ruling clarifies that ringless voicemails are treated no differently than text messages or voice calls for purposes of the TCPA, notably meaning that they require...
By: Bradley Arant Boult Cummings LLP

California Supreme Court rules in favor of policyholders: what we learn from Yahoo! Inc. v. National Fire Insurance 
Earlier this month, the California Supreme Court, in Yahoo Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania, Supreme Court of California No. S253593, ruled in favor of Yahoo, Inc. (Yahoo!), a policyholder seeking insurance coverage for Telephone Consumer Protection Act (TCPA) claims. The case came to the California Supreme Court as a certified question of law from the Ninth Circuit Court of Appeals....
By: Reed Smith

FCC Declares Ringless Voicemails to Be Calls Subject to the TCPA
The Federal Communications Commission (“FCC”) released an order finding that ringless voicemails constitute calls subject to the Telephone Consumer Protection Act (“TCPA”). Companies sending prerecorded or artificial messages directly to wireless consumers’ voicemail platforms will thus have to obtain consumer consent consistent with TCPA requirements. The ruling is effective immediately....
By: Brownstein Hyatt Farber Schreck

The Ninth Circuit Further Narrows The Meaning Of ATDS Under The Telephone Consumer Protection Act
Among other things, the federal TCPA imposes liability for calling/texting cell phone numbers using an Automatic Telephone Dialing System (“ATDS”) without sufficient prior express consent. As defined by the TCPA, ATDS is “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”......
By: Sheppard Mullin Richter & Hampton LLP

FCC Rules Ringless Voicemails Fall Under TCPA and Require Consumer Consent
On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (“Order”) holding that ringless voicemails to wireless phones require consumer consent. The FCC further held that ringless voicemails are covered by the TCPA because they are calls made using an artificial or prerecorded voice....
By: Shipkevich PLLC

Troutman Pepper Weekly Consumer Financial Services Newsletter - November 2022 # 4
To help you keep abreast of relevant activities, below find a breakdown of some of the biggest events at the federal and state levels to impact the Consumer Finance Services industry this past week......
By: Troutman Pepper

FCC rules ringless voicemails are subject to TCPA robocall prohibition
The Federal Communications Commission ruled this month that “ringless voicemail” to wireless phones is a “call” made using an artificial or prerecorded voice and therefore subject to the Telephone Consumer Protection Act robocall prohibition. The TCPA prohibits making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. The FCC’s ruling is consistent with...
By: Ballard Spahr LLP

Recent Ninth Circuit Opinions Address Standing and the Meaning of “Automatic Telephone Dialing System”
The Ninth Circuit recently issued two noteworthy TCPA decisions. Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space:  the definition of “automatic telephone dialing system” (“ATDS”)......
By: Faegre Drinker Biddle & Reath LLP

California’s Northern District Court Holds Text Messages are Not Pre-Recorded or Artificial Voices Under the Federal TCPA
On November 18, 2022, the United States District Court for the Northern District of California ruled that text messages sent by a “chatbot” do not constitute an artificial or prerecorded voice, per the federal Telephone Consumer Protection Act (TCPA). In the case, Risher v. Adecco, Inc., the plaintiff alleged that the defendants violated Section 227(b)(1)(A)(iii) of the TCPA, which prohibits non-emergency calls to cell phones using an automatic telephone dialing system or an artificial or...
By: Shipkevich PLLC

The California Supreme Court (and Court of Appeal) - November 14-18, 2022
The California Supreme Court issued the following decision last week: Yahoo, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, No. S253593. Yahoo!’s insurer, National Union, refused to indemnify Yahoo! in a series of putative class actions alleging Yahoo! violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited text messages....
By: Dorsey & Whitney LLP

FCC Releases Declaratory Ruling Addressing the TCPA Compliance Status of Ringless Voicemails
On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Declaratory Ruling), in which it determined that “ringless voicemail” to wireless phones requires prior consumer consent to transmit because it is a “call” made using an artificial or prerecorded voice and thus is covered under section 227(b)(1)(A)(iii) of the 1991 Telephone Consumer Protection Act (TCPA)......
By: Faegre Drinker Biddle & Reath LLP

FCC Rules Ringless Voicemails Require Consent
On November 21, the Federal Communications Commission (FCC) issued a Declaratory Ruling and Order finding that companies must obtain consent before sending a “ringless voicemail” to a consumer’s phone because it constitutes a “call” made using an artificial or prerecorded voice and is subject to the provisions of the Telephone Consumer Protection Act (TCPA). “Ringless voicemails” are messages sent directly to voicemail inboxes without first triggering a call ringtone. The FCC found the calls...
By: Troutman Pepper

New York Court Certifies Two Classes in TCPA Class Action
Certifying two classes in a Telephone Consumer Protection Act (TCPA) class action, a New York federal court found that questions of individualized consent did not predominate and that the plaintiffs did not need to demonstrate that they personally registered their numbers on the National Do Not Call Registry....
By: Manatt, Phelps & Phillips, LLP

Wrong Number Suit Moves Forward in California
A Telephone Consumer Protection Act (TCPA) defendant couldn’t hang its hat on the argument that it accidentally texted the wrong number, a California federal court recently held....
By: Manatt, Phelps & Phillips, LLP

Oklahoma’s Mini-TCPA Takes Effect
The potential for liability for callers has increased yet again, with Oklahoma’s Telephone Solicitation Act (OTSA) taking effect as of November 1....
By: Manatt, Phelps & Phillips, LLP

Post-Facebook v. Duguid Litigation Roundup - November 2022
As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable decisions since our last roundup. While the results remain mixed, a growing number of Circuit courts are adopting Facebook and holding that use of a random...
By: Manatt, Phelps & Phillips, LLP

Federal Court Finds Text Messages From a Chatbot Do Not Constitute a Prerecorded or Artificial Voice Under the TCPA
Do text messages sent by a chatbot fall within the provisions of the Telephone Consumer Protection Act (TCPA) prohibiting unsolicited calls made using an “artificial or prerecorded voice?” According to the United States District Court for the Northern District of California, the answer to that question is no....
By: Troutman Pepper

FCC Continues Fight Against Spam and Scam Texts
On September 27, 2022, the Federal Communications Commission (FCC) voted to adopt the New Notice of Proposed Rulemaking (NPRM) to Fight Scam and Spam Text Messages with Network-Level Blocking & Sender ID Authentication......
By: CompliancePoint

Eleventh Circuit Vacates Class Settlement in GoDaddy TCPA Suit Based on Improper Class Definition
The U.S. Court of Appeals for the Eleventh Circuit recently solidified an important rule about class standing: the definition of a class in a settlement agreement must be limited to class members with Article III standing....
By: Carlton Fields

Ninth Circuit puts new limits on aggregate statutory awards following remand of nearly $1 billion TCPA judgment
In Wakefield v. ViSalus, Inc., the Ninth Circuit considered whether a jury verdict of $925,200,000 for cumulative statutory damages under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) was constitutional in light of its harsh severity. After a three-day trial, the jury delivered a verdict against ViSalus, finding that it sent over 1.8 million prerecorded calls to class members without prior express consent, in violation of the TCPA. As the TCPA sets the minimum statutory...
By: Ballard Spahr LLP

Florida Middle District Court Finds Receiving Pre-Recorded Voice Messages Insufficient Basis for Standing to Bring Class Action Suit Alleging TCPA Violation
On November 2, 2022, the U.S. District Court for the Middle District of Florida held, sua sponte, that a plaintiff did not have standing to bring a class action suit alleging a TCPA violation. The February 9, 2022 complaint alleges that the plaintiff received two pre-recorded voice messages on his cell phone from the defendant, a for-profit school, advertising the defendant's services....
By: Shipkevich PLLC

DNJ Enters Default Judgment on Breach of Contract Counterclaim in Manufactured TCPA Lawsuit
The United States District Court of New Jersey recently granted default judgment to Defendant Slack Technologies (“Defendant”) for its breach of contract counterclaim against Plaintiff Gino D’Ottavio (“Plaintiff”), who deliberately sent himself over 1,500 text messages but represented that the texts were unsolicited and sent improperly by Defendant....
By: Faegre Drinker Biddle & Reath LLP

Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant
The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley. See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022)....
By: Faegre Drinker Biddle & Reath LLP

Applying Article III Rulings to Robocall Standing in Florida
In a prior Law360 guest article, we addressed the issue of standing for Telephone Consumer Protection Act class actions in the U.S. Court of Appeals for the Eleventh Circuit. As we noted in the article, the metes and bounds surrounding Article III standing for TCPA claims in the circuit continue to be a bit of a puzzle. Originally published in Law360....
By: Carlton Fields

TCPA FCC Petitions Tracker - November 2022
Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”). With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties....
By: Kelley Drye & Warren LLP

TCPA Tracker - October 2022
FCC PETITIONS TRACKER - Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA. Highlights of this month’s summary are provided below....
By: Kelley Drye & Warren LLP

Class Counsel Asks Supreme Court to Address Propriety of Incentive Awards
More than two years ago, the Eleventh Circuit Court of Appeals ruled in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020) that incentive payments for lead plaintiffs in class-action lawsuits are improper. After being denied rehearing en banc, the plaintiff has filed a petition for writ of certiorari for the Supreme Court to review the permissibility of incentive payments for class representatives....
By: Troutman Pepper

[Audio] FTC Consent Order With Auto Dealer and Proposed Rule - The Consumer Finance Podcast
Please join Troutman Pepper Partner Chris Willis and his guest and colleague Brooke Conkle as they discuss the Federal Trade Commission’s (FTC) recent consent order with Passport Auto Group. The FTC alleged Passport violated the law in three areas: Passport had a practice of marking up fees from the advertised price; Passport had a discretionary markup practice that caused Black and Latino customers to pay higher fees; and it charged Black and Latino customers additional fees for markups for...
By: Troutman Pepper

Ninth Circuit Issues Two Significant TCPA Decisions Concerning Mixed-Use Cellphones and Statutory Damages Awards
​​​​​​​In the past few weeks, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) has issued significant decisions concerning the Telephone Consumer Protection Act (TCPA) and its application to unwanted text messages sent to cell phones used for both personal and business use, and the constitutionality of excessive aggregate statutory damages awards....
By: Goodwin

[Audio] An Inside Look as a Juror - FCRA Focus Podcast
Please join Consumer Financial Services Partner Dave Gettings and his guests and colleagues Jessica Lohr and Virginia Flynn who discuss their recent service as jurors on criminal cases, while also providing valuable insight to litigators into what a case looks like from the jury box. Jessica defends consumer reporting agencies, national banking institutions, and mortgage loan servicers in federal and state courts at both the trial and appellate levels in complex litigation and business...
By: Troutman Pepper

Contract Terms Protect Seller From Marketer’s TCPA Violations
A contract prohibiting Telephone Consumer Protection Act (TCPA) violations protected a seller when its marketer allegedly ran afoul of the statute, according to a decision from a Tennessee federal district court....
By: Manatt, Phelps & Phillips, LLP

Company Policy Protects TCPA Defendant
Evidence of a company policy requiring employees to inform customers about receiving texts helped a Telephone Consumer Protection Act (TCPA) defendant win a partial summary judgment motion in Texas federal court....
By: Manatt, Phelps & Phillips, LLP

Post-Facebook v. Duguid Litigation Roundup - October 2022
As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable decisions since our last roundup. While the results remain mixed, defendants have generally continued to fare well under the new ATDS standard. Courts also...
By: Manatt, Phelps & Phillips, LLP

TCPA Suit Over Doctor’s Calls Fails
A doctor’s calls to his patients informing them of his plans to reduce his caseload and encouraging them to join his new, limited practice fell under the “health care messages” exception to the Telephone Consumer Protection Act (TCPA), a Maryland federal court found, granting the doctor’s motion for summary judgment....
By: Manatt, Phelps & Phillips, LLP

When Enough is Too Much: Constitutional Limitations on Extraordinary Statutory Damage Awards
Statutory schemes that create per-violation damage minimums can lead to devastating consequences when assessed in the aggregate. Where evidence of actual damages is lacking, judgments may be disproportionate to the harm and can create oppressive results....
By: Polsinelli

TCPA Class Actions – Ninth Circuit Finds Businesses Have TCPA Standing
Takeaway: In Chennette v. Porch.com, Inc., -- F.4th ----, No. 20-35962, 2022 WL 6884084 (9th Cir. Oct. 12, 2022), the Ninth Circuit expanded the scope of standing under the Telephone Consumer Protection Act (“TCPA”), finding that businesses fall within the “zone of interests” the TCPA was intended to protect, and that cell phones used for both residential and business purposes are presumptively “residential” for purposes of the TCPA....
By: Kilpatrick Townsend & Stockton LLP

9th Circuit Finds Standing for Businesses Under the TCPA
On October 12, a Ninth Circuit panel reversed a district court’s dismissal of a lawsuit brought under the Telephone Consumer Protection Act (TCPA) by several home improvement contractors against a home services platform that allegedly sent over 7,500 unwanted text messages to the contractors......
By: Weiner Brodsky Kider PC

Ninth Circuit Rules That TCPA Aggregated Statutory Damages Might Be Unconstitutionally Punitive
​​​​​​​For those embroiled in Telephone Consumer Protection Act (TCPA) class action litigation, the sum of the damages may not necessarily equal the whole. In Wakefield v. ViSalus, Inc., the plaintiff and certified nationwide class obtained a jury verdict that defendant made 1,850,440 prerecorded message calls without the then-heightened prior express consent to make such calls....
By: Venable LLP

This Week At The Ninth: Robocalls and Retaliation
This week, the Court addresses the constitutionality of a nearly $1 billion statutory damages award under the Telephone Consumer Protection Act (TCPA) and revives a California state law whistleblower claim. The Court holds a defendant waived reliance on the FCC’s retroactive exemption and remands for the district court to assess the constitutionality of a nearly $1 billion statutory damages award....
By: Morrison & Foerster LLP - Left Coast Appeals

Ninth Circuit Reverses Dismissal of Lawsuit Challenging Unwanted Business Texts Holding TCPA Protection Extends to Business Entities
On October 12, the Ninth Circuit issued a decision, reversing the dismissal of a lawsuit on the grounds that the Telephone Consumer Protection Act (TCPA) does not extend to unwanted business texts. In Chennette v. Porch.com, the Ninth Circuit held TCPA statutory protections extend not only to individuals, but also to business entities....
By: Troutman Pepper

2022 TCPA Recent Recap — Litigation Updates & Regulatory Round Up
September 2022 Action Clarifies Only Random Calls Trigger TCPA Violations — Not Mere Use of An Autodialer - Mehl v. Green, et al. 2022 WL 4056269 (E.D. Cal. Sept. 2, 2022) - A law firm was recently sued after one of its attorneys allegedly made several debt collections calls....
By: Shipkevich PLLC

An Overview of Florida's TCPA Laws
Florida’s July 1, 2021 Senate Bill 1120, commonly referred to as “Florida’s Mini TCPA,” amended the Florida Telemarketing Sales Act (FTSA). This Bill aims to crack down on telemarketing directed to Florida residents. The FTSA applies to “telephonic sales calls,” which includes a  telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, including credit extensions....
By: Shipkevich PLLC

The FCC Has Illegal and Scam Robotexting in its Sights, Proposed New Text Blocking Rules
For those regularly monitoring the FCC’s various TCPA dockets, you now have a new docket to follow: CG Docket No. 21-402. The FCC announced on September 27, 2022 that all Commissioners had voted to commence a new robotext proceeding, releasing the text of a Notice of Proposed Rulemaking (Notice) the same day......
By: Faegre Drinker Biddle & Reath LLP

FCC Proposes Action on Scam and Spam Text Messaging
The FCC proposes requiring mobile wireless providers to block text messages that appear to come from invalid, unallocated or unused numbers, and numbers on a “Do-Not-Originate” list. It also seeks comment on Over the Top (OTT) messaging, emergency communications and consumer education....
By: Pillsbury Winthrop Shaw Pittman LLP

An Overview of The Federal Telephone Consumer Protection Act (TCPA)
With its inception by Congress in 1991, the federal Telephone Consumer Protection Act (TCPA) is an attempt by Congress to exert greater protection over consumers from receiving unsolicited telemarketing. The TCPA was signed into law by President George H. W. Bush as Public Law 102-243....
By: Shipkevich PLLC

The Murky Status of TCPA Standing in the 11th Circ.
On July 27, the U.S. Court of Appeals for the Eleventh Circuit issued a precedential decision in Drazen v. Pinto, which centered on an "argument over the meaning of coupon settlements." Originally published in Law360 on September 26....
By: Carlton Fields

FCC Seeks Comment on Proposed Rules for Blocking Illegal Robotexts
On September 27, 2022, the Federal Communications Commission (FCC or Commission) released a Notice of Proposed Rulemaking (NPRM) seeking comment on a proposal that would require mobile wireless providers to block illegal text messages and applying caller ID authentication standards to text messaging....
By: Wiley Rein LLP

Post-Facebook v. Duguid Litigation Roundup - September 2022
As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on some notable decisions since our last roundup. While the results remain mixed, defendants have generally continued to fare well under the new ATDS standard....
By: Manatt, Phelps & Phillips, LLP

Texas Court Finds Private Right of Action for Do Not Call Violation
A federal court in Texas allowed a plaintiff to bring a claim for a defendant’s failure to maintain a do not call list, joining a growing number of jurisdictions to recognize a private right of action for such a claim under the Telephone Consumer Protection Act (TCPA)....
By: Manatt, Phelps & Phillips, LLP