There is never a dull week in the TCPA world. Court decisions are adopted daily, the regulators are often seeking comments from the industry and trying to adapt to new developments, and technology used to contact consumers evolves at a constant fast-pace. And with all of that going on, sometimes it’s hard to tell who makes life the hardest for those who use modern technology to reach their customers: professional plaintiffs, the FCC, the FTC, state AGs, or the courts.
But if a lot happens in just a week, a whole year of TCPA-developments is hard to digest and looking back might seem as an eternity.
The TCPA Defense Force is here to help with a review of the 2017 highlights, which will refresh your memory and allow you to obtain valuable lessons and prepare for 2018.
10 – D.C. Circuit Says “Please Hold”
At number ten on our most newsworthy TCPA stories of 2017 is, more precisely, the lack of news out of the DC Circuit Court of Appeals on the appeals lodged against the FCC’s 2015 Omnibus TCPA Order. Those appeals challenge several aspects of that order, including the definition of automated telephone dialing system and the requirement to honor consumer opt-out requests. It was fully brief and argued by October 2016. However, over a year later the D.C. Circuit has failed to resolve the appeal, leaving the many businesses without clear guidance on the impact of the FCC’s 2015 Order. We predict that a decision will finally be released sometime this year and that, whatever the result, it will be a big news item for 2018.
Related blog post: D.C. Circuit Set to Release Landmark TCPA Decision: Be the First to Know!
9 – Ringless Voicemail – In or Out?
Coming in at number nine this year, is ringless voicemail. A marketing firm called All About the Message filed the petition in March 2017, asking the FCC to declare that ringless voicemails aren’t actually calls and therefore not subject to the TCPA. The FCC sought public comment on the petition. But, in June 2017 the company withdrew the petition, leaving the issue of whether ringless voicemails are subject to the TCPA up in the air, likely to be decided through litigation in several courts.
Related blog post: VIDEO: 2017 PACE Washington Summit Panel Presentation
8 – Written or Spoken Revocation – Isn’t it the Same?
Taking the number eight spot is a judicial trend that we saw get traction during 2017. Courts seem to be more flexible in concluding that consent was properly revoked through ambiguous language when said during a phone call, than when texted via an SMS. In other words, courts often recognize that it is reasonable to expect for someone to text “STOP” or other clear language when their intention is to unequivocally revoke their consent. However, when analyzing whether consent was revoked during a phone call, courts seem to be more open to interpretation. To cite an example, in Schweitzer v. Comenity Bank, the Eleventh Circuit concluded that when the called plaintiff said: “call me, like, in the morning and during the work day”, such language was indeed a revocation (although partial), and established that the “meaning of language is inherently contextual.” However, in Blow v. Bijora, the 7th Circuit found that in order to properly revoke consent, the plaintiff could easily have just texted the word “STOP” to the caller as instructed, instead of narrowing down its consent to only receive specific type of text messages.
7 – 11th Circuit Demonstrates Questionable Taste in Music and TCPA Jurisprudence
Coming in at number seven is a decision from the 11th Circuit Court of Appeals that used a pop culture reference to Carly Rae Jepsen’s song Call Me, Maybe? to create a new requirement for companies to honor the partial revocation of consent offered by consumers of Comenity Bank. Specifically, the court in Schweitzer v. Comenity Bank found that a consumer who asked to stop receiving calls during the work day for purposes of collecting a late payment should have been allowed to take her claims to trial. In its opinion, the Court dismissed concerns that the new requirement was likely to make compliance with TCPA even more challenging and fuel even more litigation. Thanks, 11th Circuit.
6 – Second Circuit Acts to Preserve Freedom of Contract
Number six on the countdown is a bit of better news coming from the 2nd Circuit Court of Appeals. In Reyes v. Lincoln the court found that a consumer who had given consent to receive calls and text messages as part of his agreement to lease a car could not later revoke his consent to receive those calls. According to the Second Circuit, a consumer cannot pick and choose which parts of a contract she wants to be bound to and Congress has never expressed any intention to limit a company’s freedom of contract.
5 – Future-telling May Be a Necessary Skill to Avoid Using an ATDS
In the fifth spot on the countdown is the continuation of a common issue regarding the ATDS definition. In Blow v. Bijora, the Seventh Circuit held that Bijora-a women’s clothing retailer known as Akira-failed to prove that the system it used from 2009 to 2011 did not meet the FCC’s expanded definition of an ATDS. This is, Akira failed to demonstrate that its system did not have either the “present or future capacity to become an ATDS” as defined by the FCC in the 2015 Omnibus TCPA Order. With technology developments, and software updates, there is a huge gap between reality and current capabilities, and what a system could become once updated in the future. This case shows the importance of presenting the strongest case possible on why the technology you use to deliver your communications does not qualify as an ATDS, now or with any foreseeable adaptations.
4 – FCC Flirts with Call Blocking
In what can be considered a reversal of decades-long blackletter policy against call blocking, 2017 saw the FCC flirting with the potential that permitting call blocking might be a viable solution to curbing unlawful and unwanted robocalls. Indeed, the FCC adopted rules authorizing voice service providers to block calls when the subscriber requests blocking of calls from a specified number and also authorized voice service providers to block calls when the Caller ID that is transmitted must be spoofed because the number being displayed is not actually in service. Whether these new rules are effective, or whether carriers abuse them to block lawful phone calls, will definitely be an issue to keep an eye on in the year ahead.
Related blog post: FCC Proposes New Rules to Target Unlawful Robocalls
3 – VoIP Services Continue to be a Compliance Conundrum
2017 saw the continued explosion of Voice over IP or VoIP phone services and with it increased litigation regarding the treatment of VoIP phone numbers for purposes of the TCPA, and that’s why this item claims the number three spot on our countdown. As we have written in the past, there’s good reason for companies to be concerned about how VoIP numbers fit in their TCPA compliance plans. Courts have reached conflicting opinions, mostly turning on whether or not the call recipient has to pay a per-call or per-minute fee for inbound calls on their specific VoIP service.
Related blog post: Another Day, Another TCPA Compliance Issue Regarding VoIP Services
2 – Reassigned Numbers Revisited
Taking the number two spot on the countdown is the issue of reassigned numbers. This issue came to the forefront in 2015 when the FCC created a one-call safe harbor in its Omnibus TCPA Order and held that after the one call any calls or text messages to a telephone number that had been reassigned to a new user could subject a company to potential TCPA liability. While 2017 did not bring clarity from the DC Circuit about whether the FCC’s decision will stand, it did bring the beginning of an effort by the FCC under Chairman Pai to address the fact that there’s no available resources for companies to be made aware of every telephone reassignment. Specifically, the FCC asked the industry to weigh in on whether it should mandate the creation of one or more comprehensive databases and require carriers to report number reassignments in order to make it easier to avoid inadvertent TCPA exposure. We expect this issue to remain a hot-button topic in 2018.
Related blog post: Exclusive Interview on the FCC's One-Call Safe Harbor
1 – Courts Dish Out Big Penalties
Our most newsworthy-TCPA development this year were the significant fines and penalties dished out to Dish Network by federal courts this year for willfully and recklessly violating the TCPA and the Federal Trade Commission’s Telemarketing Sales Rules. In two opinions that shook the TCPA world, courts awarded over $300 million in damages against Dish Network, finding that the company had failed to live up to commitments it made in prior settlements with 46 states attorneys general by turning a blind eye to several signs that sales and marketing agents were making unlawful telemarketing calls on its behalf. If there’s a silver lining for Dish its only that the penalties weren’t more. According to one decision, Dish faced potential liability of $783 billion for its violations.