Telephone Consumer Protection Act (TCPA) – Consumer Financial Services Watch

TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

Nov 23 2016

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

On Monday, the U.S. Department of Justice (“DOJ”) declined to intervene in Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.). As previously discussed here, a class of plaintiffs sued President-Elect Trump’s campaign alleging violations of the Telephone Consumer Protection Act (“TCPA”) in connection with text messages sent during the campaign. In seeking dismissal of the suit, the campaign argued that the TCPA does not pass muster under the First Amendment. Specifically, the campaign asserted that Congress’s November 2015 exemption of calls relating to government debt constitutes “preferential treatment” and qualifies as a “blatant and egregious form of content discrimination.”

The DOJ did not provide a reason for declining to intervene, and the campaign is now faced with the prospect of going it alone in its First Amendment challenge to the TCPA.

House Energy and Commerce Committee Calls for Modernizing the TCPA

Sep 28 2016

By Pamela Garvie, Andrew Glass, Greg Blase, Peter Nelson and Elana Reman

On September 22, 2016 the House Energy and Commerce Committee’s Subcommittee on Communications and Technology held a hearing on modernizing the TCPA. The hearing is significant because it marks the first time that lawmakers on both sides of the aisle have said the TCPA needs to be updated to reflect changing technology and business practices, and to draw a distinction between “harassing, malicious” calls from “bad actors” and “legitimate, informational calls that consumers want.” Republican members of the Subcommittee have raised concerns about the TCPA during past FCC oversight hearings, but this hearing actually was held at the request of full Committee Ranking Democrat Member Frank Pallone Jr. (D-NJ), Subcommittee Ranking Democrat Anna Eshoo (D-CA), and Congresswoman Jan Schakowsky (D-IL).

Sixth Circuit Finds “Prior Express Consent” in Affirming Dismissal of TCPA Class Action against Healthcare Provider’s Debt Collector

Mar 10 2016

By: Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, Eric W. Lee

The Sixth Circuit (the “Court”) recently sided with a defendant-debt collector in a putative class action in which the plaintiffs claimed that the defendant’s calls to their cell phones violated the Telephone Consumer Protection Act (“TCPA”). In Baisden v. Credit Adjustments, Inc., the Court held that “prior express consent” can be “obtained and conveyed via intermediaries.” In reaching this conclusion, the Court applied binding guidance from the Federal Communications Commission (“FCC”) and followed the holding of the Eleventh Circuit in Mais v. Gulf Coast Collection Bureau, Inc.

To read the full alert, click here.

Supreme Court Grants Cert. to Consider Whether Offer of Complete Relief Moots TCPA Class Action

May 27 2015

By: Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Jennifer J. Nagle, Eric W. Lee

The United States Supreme Court recently granted certiorari in a Telephone Consumer Protection Act class action challenging text messages which a U.S. Navy vendor sent to recruit new sailors. In Campbell-Ewald Company v. Gomez, No. 14-857, the Supreme Court will review (1) whether a defendant’s offer to provide complete relief as to individual claims deprives the plaintiff of Article III standing, and (2) whether such an offer can also prevent a putative class plaintiff from proceeding where no class has yet been certified.

Client of Blast Fax Solutions Provider Hit with $22 Million TCPA Judgment

Apr 14 2015

By: Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

A new decision once again highlights the dangers that companies face if their independent contractors engage in conduct that violates the Telephone Consumer Protection Act, and highlights the need to monitor contractor compliance with the TCPA. In City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., a federal court in New Jersey recently found a roofing company, David/Randall Associates, liable for $22.4 million under the TCPA for the actions of its blast fax solutions provider, Business to Business Solutions (B2B).

To read the full alert, click here.

Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA

Nov 14 2014

By: Gregory N. Blase, Andrew C. Glass, Samantha A. Miko

The U.S. Court of Appeals for the Eleventh Circuit recently bolstered the Federal Communications Commission’s (“FCC”) interpretation of “prior express consent,” a key term under the Telephone Consumer Protection Act (“TCPA”).

In Mais v. Gulf Coast Collection Bureau, Inc., the plaintiff’s wife provided the plaintiff’s cellphone number on a hospital admittance form. The form disclosed that any information supplied could be shared with the hospital’s affiliates and used for any purpose, including for billing. After the plaintiff failed to pay a hospital affiliate’s invoice for treatment services rendered, the affiliate provided the plaintiff’s contact information to the defendant, which initiated collection activity, including contacting the plaintiff at the cellphone number that was provided on his admittance form by his wife. Read More

FCC Order Confirms that TCPA Regulations Require Opt-Out Notice on All Fax Advertisements, Even Those Sent with Prior Express Permission

Nov 10 2014

By: Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

On October 30, 2014, the Federal Communications Commission (“FCC”) released an Order that “confirms” that opt-out notices complying with rules and regulations adopted by the FCC in 2006, pursuant to the authority granted to the FCC under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, are required on all advertisements transmitted by facsimile, including advertisements transmitted with the prior express permission of the recipient. The FCC also granted retroactive waivers to parties that were reasonably uncertain about whether the opt-out notice requirement applied to faxes sent with prior express permission from the recipient. The FCC further stated that individual retroactive waivers may be extended to similarly situated parties that seek waiver requests prior to April 30, 2015.

To read the full alert, click here.

K&L Gates Live Webcast: Telemarketing and the Telephone Consumer Protection Act—Avoiding Traps and Minimizing Risk

Sep 23 2014

Join us for this upcoming live video webcast on Thursday, October 2nd, from 12:00 p.m. to 1:30 p.m. (ET).

The program will include an in-depth discussion, followed by a lively Q&A session on a variety of issues involving the Telephone Consumer Protection Act (TCPA). Our knowledgeable panel will cover a range is issues, including:

Restrictions on texting and other types of communications
Issues around “Automatic Telephone Dialing Systems”
“Prior Express Consent” and revocation
Damages and standards for finding knowing and willful violations
Defense of class certification
Compliance and telemarketing issues
Insurance coverage
Other emerging issues

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