Lewis Wiener on FCC

Dialing in – Top five TCPA issues for 2019

Companies in consumer-facing industries face a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). In 2018, TCPA lawsuits remained one of the most filed types of class actions in courts...more

1/10/2019 / Auto-Dialed Calls , Class Action , Databases , Exclusive Jurisdiction , FCC , Hobbs Act , Prior Express Consent , Reassigned Phone Numbers , Revocation , TCPA , Third-Party Liability

Narrowing the scope of TCPA litigation (for now) – FCC creates reassigned number database and option to block spam text messages

According to the Federal Communications Commission (FCC), approximately 100,000 cell phone numbers are reassigned in this country every day, resulting in millions of wireless numbers being reassigned each year. Reassigned...more

12/21/2018 / Auto-Dialed Calls , Databases , Declaratory Rulings , FCC , Prior Express Consent , Reassigned Phone Numbers , Robocalling , Safe Harbors , Spam , TCPA , Text Messages , Wireless Devices

Deference or preference – Supreme Court to address agency authority in context of TCPA litigation

Are courts bound by Federal Communications Commission (FCC) rulings and orders in deciding Telephone Consumer Protection Act (TCPA) cases? The United States Supreme Court has agreed to take on a case raising this very issue. ...more

12/6/2018 / Certiorari , Chevron Deference , FCC , Hobbs Act , SCOTUS , TCPA , Unsolicited Faxes

You can’t unring a bell – More courts reject revocation of consent under the TCPA

Whether and in what form a consumer has given consent to be contacted via an automatic telephone dialing system (ATDS) may be a crucial aspect of determining liability under the Telephone Consumer Protection Act (TCPA)....more

11/20/2018 / Appeals , ATDS , Bilateral Agreements , Consent , FCC , Prior Express Consent , Revocation , Summary Judgment , TCPA

Crunch time - courts split on definition of autodialer under TCPA and FCC requests immediate supplemental comments

On October 3, the Federal Communications Commission (FCC) instituted a brief, immediate, supplemental comment period as it seeks to resolve an issue at the heart of thousands of lawsuits filed under the Telephone Consumer...more

10/5/2018 / ATDS , Auto-Dialed Calls , Comment Period , FCC , Rulemaking Process , Split of Authority , TCPA , Telecommunications

Who’s calling? Standards for third-party liability under the TCPA

Companies that market products through third-party agents or distributors face a particular risk under the Telephone Consumer Protection Act (TCPA) when their agents call, text or fax consumers without obtaining the necessary...more

8/14/2018 / Advertising , Class Action , Corporate Counsel , Dish Network , Faxes , FCC , Marketing , TCPA , Telemarketing , Text Messages , Third-Party Liability , Unsolicited Faxes , Vicarious Liability

Speed bump or roadblock? Florida court’s stay of TCPA case may signal trouble ahead for junk fax cases

In a decision that may have ripple effects in other pending Telephone Consumer Protection Act actions, on June 2, 2018, the US District Court for the Middle District of Florida issued a stay in Scoma Chiropractic, P.A. v....more

6/13/2018 / Cloud Computing , Corporate Counsel , Declaratory Rulings , FCC , MasterCard , Primary Jurisdiction Doctrine , Stays , TCPA , Unsolicited Faxes

Now’s your chance - FCC asks for help defining autodialer, other TCPA issues

“What is an autodialer?” The FCC wants to know what you think. For years, the question of what constitutes an autodialer has confounded courts, the Federal Communications Commission (FCC), and companies that call and text...more

5/18/2018 / Auto-Dialed Calls , Comment Period , Declaratory Rulings , FCC , Prior Express Consent , Public Notice , TCPA

Frequently asked questions about the DC Circuit’s ACA International decision

Here are answers to many of the Frequently Asked Questions arising from the DC Circuit’s decision in ACA International. TCPA R.I.P.? - No. The DC Circuit struck down two of the FCC’s most controversial rules—the...more

4/5/2018 / ATDS , Auto-Dialed Calls , Cell Phones , Declaratory Rulings , FCC , Prior Express Consent , Reassigned Phone Numbers , Revocation , Robocalling , Safe Harbors , Smartphones , TCPA

SPEAK UP - FCC invites comment on proposed rules governing calls to reassigned cell phone numbers and attendant TCPA liability

On March 22, 2018, the Federal Communications Commission (FCC) issued its Second Further Notice of Proposed Rulemaking and is seeking comments on the intractable problem of Telephone Consumer Protection Act (TCPA) liability...more

3/29/2018 / Comment Period , FCC , NPRM , Prior Express Consent , Proposed Regulation , Reassigned Phone Numbers , TCPA

Call connected: DC Circuit finally weighs in, rejects significant parts of the Federal Communications Commission’s 2015 TCPA order

In a long-awaited ruling, the US Court of Appeals for the DC Circuit trimmed the expansive scope of the Telephone Consumer Protection Act (TCPA). The appellants, in ACA International v. Federal Communications Commission...more

3/23/2018 / Auto-Dialed Calls , Call Blocking , Declaratory Rulings , Exemptions , FCC , Mobile Devices , Prior Express Consent , Reassigned Phone Numbers , Revocation , Robocalling , Smartphones , TCPA , Telemarketing , Text Messages , Wireless Devices

The future is calling: “Voice over Internet Protocol” and the TCPA

One of the many criticisms of the Telephone Consumer Protection Act (TCPA), enacted in 1991, is that it has not kept pace with developments in communications technology. Instead, the Federal Communications Commission (FCC),...more

3/15/2018 / Corporate Counsel , FCC , Mobile Devices , Summary Judgment , TCPA , Verizon , VoIP

Alternative fax? FCC and TCPA defendants urge Supreme Court to reject review of lower court’s junk fax ruling

Oppositions to a petition for certiorari were recently filed with the United States Supreme Court urging the Court to reject a proposed appeal filed by serial Telephone Consumer Protection Act (TCPA) plaintiffs seeking review...more

1/29/2018 / Advertising , Class Action , Declaratory Rulings , Faxes , FCC , Petition for Writ of Certiorari , Pharmacies , SCOTUS , TCPA , Unsolicited Faxes

Dialing-In: TCPA Hot Issues for 2018

Companies across a spectrum of consumer-facing industries face a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). In 2017, TCPA lawsuits remained one of the most frequently filed...more

1/9/2018 / Auto-Dialed Calls , Class Action , Corporate Counsel , Declaratory Rulings , FCC , Prior Express Consent , Revocation , Robocalling , TCPA , Third-Party Liability

Call Waiting? Challengers Continue to Await Ruling in Appeal of 2015 TCPA Order

We continue to await a ruling from the US Court of Appeals for the DC Circuit in the appeal of the Federal Communications Commission’s (FCC) July 2015 Omnibus Telephone Consumer Protection Act (TCPA) Declaratory Ruling and...more

12/20/2017 / Auto-Dialed Calls , FCC , Financial Services Industry , Health Care Providers , Mobile Devices , Prior Express Consent , Reassigned Phone Numbers , TCPA

All Dressed Up and Nowhere to Go: Ringless Voicemail FCC Petition Withdrawn

In the face of significant opposition from virtually all quarters, All About The Message, LLC (AATM), has withdrawn its petition asking the Federal Communications Commission (FCC) for a declaratory ruling that a prerecorded...more

6/29/2017 / Comment Period , Declaratory Rulings , FCC , First Amendment , Marketing , Mobile Devices , Robocalling , TCPA , Voicemail

Locked-In: TCPA Consent Not Revocable If a Term of Contract

Consent to be contacted under the Telephone Consumer Protection Act (TCPA) is not revocable if included as a term of a written contract, according to a decision by the US Court of Appeals for the Second Circuit in Reyes v....more

6/28/2017 / Appeals , Consent , Consumer Financial Contracts , Contract Terms , FCC , Opt-Outs , TCPA

DC Circuit Denies Rehearing of TCPA Fax Decision

On June 6, 2017, the US Court of Appeals for the DC Circuit denied the government’s request for an en banc rehearing of a March 31, 2017, decision that invalidated a decade-old Federal Communications Commission (FCC) rule...more

6/14/2017 / Faxes , FCC , Lack of Authority , Opt-Outs , TCPA

No Harm, No Foul? FCC Seeks Comment on Direct-to-Voicemail Services and the TCPA

Does a prerecorded message delivered directly to the recipient’s voicemail constitute a “call” subject to the restrictions of the Telephone Consumer Protection Act (TCPA)? The Federal Communications Commission (FCC) is...more

5/1/2017 / Cell Phones , FCC , Public Comment , TCPA , Voicemail

Untangling the Cord: Seeking Clarity on the TCPA’s Definition of Autodialer

Businesses and other stakeholders continue to grapple with what constitutes an “automatic telephone dialing system” (ATDS or autodialer) as it is defined in the Telephone Consumer Protection Act (TCPA). As noted previously,...more

4/6/2017 / Auto-Dialed Calls , FCC , TCPA

Just the Fax: DC Circuit Rejects FCC Requirement of Opt-Out Language on Solicited Faxes Under the TCPA

In a March 31, 2017 ruling, the US Court of Appeals for the DC Circuit invalidated a 2006 Federal Communications Commission (FCC) rule requiring businesses to include opt-out notices on solicited fax advertisements sent with...more

4/5/2017 / Advertising , Class Action , Faxes , FCC , Opt-Outs , Prior Express Consent , Reversal , TCPA

Opting Out: TCPA Fax Opt-Out Requirement Struck Down—D.C. Circuit Says FCC Can’t Require Opt-Out Notices on Solicited Faxes

The US Court of Appeals for the D.C. Circuit invalidated a rule issued by the Federal Communications Commission (FCC) in 2006 requiring businesses to include opt-out notices when the recipient has consented to receive the...more

4/3/2017 / Appeals , FCC , Opt-Outs , TCPA , Unsolicited Faxes

Lewis Wiener

Eversheds Sutherland (US) LLP

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