The recent controversial Restoring Internet Freedom Order has essentially changed net neutrality from a regime based on rules to one based on enforcement. The Federal Trade Commission's role will be to protect against potential consumer and competitor harm and state attorney generals are expected to be just as involved in enforcement efforts. With the order's structure now based on transparency, the onus will shift to enforcers to ensure that internet service providers deliver what they promise.
A $61 million judgment in a Telephone Consumer Protection Act class action will stand after a federal court judge denied Dish Network's motion to reduce or set aside the trebled damages award. The plaintiff had originally filed suit against Dish Network, alleging that he received dozens of calls on its behalf despite the fact that his number was registered on the national Do Not Call Registry. Although Dish filed a motion to set aside the verdict based on res judicata, the court was not persuaded.
In a recent case involving a purported time-share scam, a Florida federal court ruled that disgorgement and refunds are remedies available to the Federal Trade Commission (FTC). The defendants filed a motion for summary judgment, arguing that the equitable relief sought by the FTC was unavailable pursuant to the statutes pled in the complaint. However, the court found no shortage of case law recognising the availability of the equitable relief sought by the FTC.
A recent Illinois federal court decision adds to a growing body of law stating that a click-to-call dialling system using human intervention is not an automatic telephone dialling system (ATDS) for Telephone Consumer Protection Act purposes. While uncertainty abounds as to what is an ATDS after the Federal Communication Commission's July 2015 ruling, this decision can help to provide some measure of comfort to companies using click-to-call dialling systems.
A US district judge recently granted final approval to a $14.5 million deal involving American Eagle Outfitters to end multiple lawsuits accusing the national retailer of sending thousands of spam texts to more than 600,000 consumers, finding that a statutory violation alone was sufficient to establish a concrete injury. The case demonstrates that multimillion-dollar settlements continue to be a popular solution to Telephone Consumer Protection Act class actions.
The Federal Communications Commission recently released a notice of inquiry asking for feedback on handling unwanted phone calls to reassigned numbers. Feedback included questions about the ways in which providers could report number reassignments and what information should be reported. Of the dozens of responses, the majority appeared to support the commission's plan to establish a central database, although opinions differed on the details.
In 2012 Alan Rackemann downloaded a mobile application offered by the National Football League team. When Rackemann later learned that the app used beacon technology that activated his device's microphone to temporarily record portions of audio, he filed suit, alleging that the Colts, along with two audio technology development companies, had run afoul of the federal Wiretap Act. The defendants moved to dismiss the suit, but the US District Court recently denied the motion.
Uber recently agreed to pay $20 million to settle a case that began with a customer's typo. The plaintiff alleged that Uber had sent her a series of unsolicited text messages urging her to complete a sign-up process that she had never initiated. According to Uber, another user had mistakenly transposed digits of their own phone number during the sign-up process, causing the plaintiff to erroneously receive the text messages.
During a 17-month period after the Federal Communication Commission (FCC) July 2015 order, the US Chamber Institute for Legal Reform compiled a database of 3,121 Telephone Consumer Protection Act cases filed between August 2015 and December 2016 to examine the trends of litigation under the act. The chamber found that such litigation has increased 46% since the FCC's July 2015 declaratory ruling and that more than 30% of the cases brought are class actions.
Consent can be partially revoked pursuant to the Telephone Consumer Protection Act, the US Court of Appeals for the Eleventh Circuit recently held. Although the statute itself is silent on the issue of revocation, the panel looked to a 2014 decision where it had held that a consumer may orally revoke her consent to receive automated phone calls, inferring that Congress intended for the act to incorporate the common law understanding of consent.
On remand from the US Court of Appeals Eighth Circuit, a Missouri federal judge found that robocalls voiced by Mike Huckabee violated the Telephone Consumer Protection Act because they had the primary purpose of advertising a movie and not conducting a political survey. The court found that even if consumers had provided their phone numbers for the purpose of receiving calls about religious freedom or liberty, they had not consented to receiving calls about the movie.
A text message does not constitute telemarketing pursuant to the Telephone Consumer Protection Act where it was sent to complete a transaction, according to a recent federal court decision. Further, where a prospective purchaser has entered his or her contact information in an online form and submitted it (even if the order is not completed), the individual has provided prior express consent for non-marketing communications. This decision could provide comfort to businesses seeking to send such communications.
In a new notice of inquiry approved by the Federal Communications Commission (FCC) at the July 2017 open meeting, the agency requested feedback on handling unwanted phone calls to reassigned phone numbers. FCC Chair Ajit Pai said that solving the problem of reassigned numbers "would save everyone a lot of trouble". Businesses have already faced the threat of liability under the Telephone Consumer Protection Act for reaching out to reassigned numbers.
With the death of the Solicited Fax Rule, consent is becoming a key issue in many Telephone Consumer Protection Act fax cases, particularly where the faxes are sent to existing or former customers. In a recent junk fax case, the Sixth Circuit declined to certify a class of tens of thousands of plaintiffs, finding that the question of consent in a Telephone Consumer Protection Act class action requires an individualised inquiry and that without a list of recipients the class cannot be ascertained.
Continuing the good news for Telephone Consumer Protection Act defendants on the fax front, the US Court of Appeals for the DC Circuit recently refused to postpone its invalidation of the Federal Communication Commission's Solicited Fax Rule pending an appeal to the Supreme Court. Created in 2006, the rule required that even fax advertisements sent with a recipient's prior express invitation or permission contain an opt-out notice with specified information.
The Federal Communications Commission (FCC) recently proposed a $120 million fine against an individual who made more than 96 million robocalls over a three-month period by imitating the area code of call recipients to trick them into answering the phone. Now that it has issued its first forfeiture under the Truth in Caller ID Act, the FCC has noted that future spoofing cases could involve higher penalties in light of their particular facts and circumstances.
A petition filed with the Federal Communications Commission (FCC) requested that the agency declare that the delivery of a voice message directly to a voicemail box does not implicate the Telephone Consumer Protection Act (TCPA). However, the petition was withdrawn. Without an FCC ruling on this issue, whether ringless voicemail is covered by the TCPA remains unclear. While no ruling is better than an adverse ruling, great uncertainty remains.
An appellant recently alleged that Poshmark, a mobile app that allows users to browse, buy and sell clothing and accessories, sent him two text messages in 2015 inviting him to view and buy certain items, and alleged that the app had violated the Telephone Consumer Protection Act. However, the judge determined that text messages initiated by a user inviting friends to use a fashion-themed mobile app were not actionable against the operator of the app.
The US Court of Appeals for the Seventh Circuit recently tossed a Telephone Consumer Protection Act suit against a retailer over a text message marketing campaign. The case highlights that the scope of consent provided by a consumer continues to be an important issue. Further, while a consumer does not consent to any and all contact by providing his or her cellphone number, he or she does consent to contact relating to the reason that the number was provided.
An Illinois federal court judge has dismissed a complaint brought under the Telephone Consumer Protection Act by an applicant against a company to which she had applied for employment. The decision is a victory not just for employers concerned about using modern technology to reach out to job applicants, but for Telephone Consumer Protection Act defendants generally, as it demonstrates that a consumer's silence or inaction cannot revoke consent.