One of the fastest growing areas of class-action litigation is lawsuits under the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits most unsolicited calls or text messages to cell phones using either an autodialer or an artificial or prerecorded voice, as well as most unsolicited calls to residential landlines using an artificial or prerecorded voice. The Act also mandates the creation of national and company-specific “Do Not Call” lists and imposes numerous restrictions on telemarketing faxes. Recipients of forbidden calls, text messages, or faxes can sue for up to $1,500 in statutory damages per violation. And in recent years, the number of class actions under the TCPA has skyrocketed.
A key contributor to this surge in litigation is the Federal Communications Commission’s (“FCC”) increasingly expansive interpretations of the TCPA. In fact, the FCC’s marked expansion of TCPA liability in its 2015 Omnibus Declaratory Ruling and Order is now the subject of a consolidated appeal pending before U.S. Court of Appeals for the District of Columbia. In ACA International v. Federal Communications Commission, the petitioners challenge three aspects of the 2015 Order:
- The FCC’s determination that any equipment that has even the “potential ability” through hardware or software modifications to have the “capacity” to generate and dial random or sequential numbers constitutes an autodialer triggering TCPA liability
- The FCC’s conclusion that the TCPA imposes liability for wrong-number calls or text messages to which the intended recipient had consented, even if the sender did not know that a service provider reassigned the intended recipient’s phone number
- The FCC’s ruling that consumers “may revoke consent” to be contacted “through any reasonable means” and cannot agree in advance to revoke consent only through agreed-to methods
The oral argument in this critical appeal is scheduled for October 19, 2016.
On Thursday, October 27, 2016, please join Mayer Brown partners Charles Harris, Archis Parasharami, Kevin Ranlett, Howard Waltzman and Rebecca Lobenherz for a webinar discussing their takeaways from the argument.
In particular, they will discuss:
- The significance of the ACA International case and the FCC’s 2015 Order
- Their prediction for the outcome of the appeal
- Other recent developments in TCPA litigation and regulatory actions
- Best practices for compliance with the TCPA
CLE is not available when listening to a recording of this program. In order to receive credit you must have attended the live webinar program.
When viewing the presentation, please play the below audio clips during the slides as noted.
Conversation between Judge Srinivasan and Petitioners’ counsel
Conversation between Judge Srinivasan, Judge Pillard and FCC’s counsel
Discussion between Judge Pillard, Judge Srinivasan and Petitioners’ counsel
Discussion between Judge Srinivasan and the FCC’s counsel
Conversation between Judge Edwards and the Petitioner’s counsel
Conversation between Judge Pillard and the FCC’s counsel
Discussion between Judge Pillard, Judge Srinivasan, and Petitioners’ counsel
Conversation among Judge Srinivasan, Judge Pillard, and FCC’s counsel