Manatt Phelps & Phillips LLP updates

First ringless voicemail message TCPA decision sides with plaintiff
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 15 August 2018

A federal judge in Michigan was the first to declare in a published dispositive opinion that a ringless voicemail message (RVM) is a 'call' regulated by the Telephone Consumer Protection Act (TCPA). Companies would be well advised to ensure that they have proper consent under the TCPA when using RVM technology until there is further clarity on whether the technology is covered by the TCPA.

NAD limits T-Mobile's 'best unlimited network' claims
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 08 August 2018

In the ongoing battle of advertisers in the wireless service provider industry, AT&T scored a victory when the National Advertising Division (NAD) recommended that T-Mobile discontinue the claims in its statements "T-Mobile is America's Best Unlimited Network" and "Welcome to America's best unlimited network". The NAD determined that the claims conveyed a broad overall network superiority message and not a qualified claim about high-speed data, a message that T-Mobile had failed to substantiate.

Proposed legislation, testimony and proposed rulemaking on robocalls
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 11 July 2018

Robocalls are a hot topic in Washington DC, with new proposed legislation, testimony from the Federal Trade Commission regarding its efforts to combat the problem and a second further notice of proposed rulemaking from the Federal Communications Commission having all been released in the past few months. These give some important insight into how robocalls may be treated in future and could give rise to future Telephone Consumer Protection Act litigation.

Verification fax found to be advertising
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 20 June 2018

An Illinois federal court recently declared that a fax sent to verify the contact information of recipients constituted an 'advertisement' within the meaning of the Telephone Consumer Protection Act because it had declared the commercial availability of the defendant's services on its face. As an alternative holding, the court found that the fax served as a pretext to an advertisement as it had required the plaintiff to access a website advertising the defendant's services in order to stop such faxes.

Fourth Circuit: no ratification, no vicarious liability
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 23 May 2018

The US Court of Appeals for the Fourth Circuit has affirmed summary judgment in favour of two Telephone Consumer Protection Act defendants that the panel found were not vicariously liable for calls made by telemarketers promoting their products. The court found that the defendants had not ratified the allegedly illegal activity cited in the plaintiffs' complaint and could not be held liable under the statute. The decision offers a roadmap for parties seeking to avoid vicarious liability under the act.

Court refuses to hit the brakes
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 16 May 2018

The New York attorney general's false advertising suit challenging Time Warner Cable's (TWC's) speed claims is not pre-empted by Federal Communications Commission regulations, a New York federal judge has ruled. In a complaint filed in February 2017, Attorney General Eric T Schneiderman claimed that TWC and Spectrum had deliberately and systematically defrauded New York consumers by promising services that they knew they could not deliver.

With evidence of possible consent, Yahoo! scores class decertification
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 09 May 2018

An Illinois federal district judge handed Yahoo! a rare defence victory when it decertified the class of plaintiffs in a Telephone Consumer Protection Act lawsuit involving text messages sent from a user messaging platform based on evidence obtained from a phone carrier during the class member identification process. This case serves as a lesson to engage in precertification discovery, particularly if certification seems likely.

Fourth Circuit: lower courts must follow FCC's TCPA interpretations
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 02 May 2018

In a recent ruling, the Fourth Circuit has followed its sister circuits in holding that district courts must follow the Federal Communications Commission's (FCC's) interpretations of the Telephone Consumer Protection Act (TCPA). The Hobbs Act dictates that courts must apply the 2006 FCC rule in interpreting the TCPA and that rule, in turn, tells courts what constitutes an 'advertisement' within the meaning of the statute.

Top takeaways from DC Circuit's long-awaited TCPA decision
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 25 April 2018

The US Court of Appeals for the DC Circuit has released a hotly anticipated decision which will affect a wide range of industries, including financial services, retail and healthcare. The court set aside the Federal Communications Commission's overly expansive definition of 'automatic telephone dialling system' and its ruling on reassigned telephone numbers, but declined to set aside its rulings on revocation of consent and the scope of the exigent healthcare exemption applicable to wireless calls.

Florida court: no ATDS, no Telephone Consumer Protection Act suit
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 04 April 2018

Finding that the telephone system used by the defendant was not an automatic telephone dialling system (ATDS), a Florida federal court recently dismissed a putative Telephone Consumer Protection Act class action. This decision adds to the growing body of cases that take a practical approach to the ATDS question by evaluating the level of human intervention used to place the calls and provides further guidance on evaluating whether a system might be deemed an ATDS.

States take sides on net neutrality
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 28 March 2018

The states have taken matters into their own hands as the battle over net neutrality continues, even after the Federal Communications Commission's vote to repeal the rules. Attorney generals from 21 states and the District of Columbia recently filed a placeholder lawsuit asking that the repeal order be invalidated. In addition to the lawsuit, some states are also enacting their own versions of net neutrality.

Too soon to dismiss Telephone Consumer Protection Act action, court decides
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 21 March 2018

A Connecticut judge has denied a motion to dismiss a putative Telephone Consumer Protection Act class action, ruling that whether the faxes at issue were unsolicited remains in dispute. The decision illustrates the difficulty of having a Telephone Consumer Protection Act action dismissed at the pleading stage, even if the defence has evidence of potential consent or an established business relationship.

Table for two: restaurant's text did not violate TCPA
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 21 February 2018

A text message related to a transaction initiated by the plaintiff could not violate the Telephone Consumer Protection Act, a California federal court held in dismissing a putative class action. The court was not persuaded by the plaintiff's argument that the inclusion of a link to view dinner specials transformed the restaurant's text message from a simple confirmation of a dinner reservation into an advertisement. However, if the text had gone beyond a simple link, the decision could have gone another way.

Court rejects plaintiff's efforts to expand discovery beyond fax
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 14 February 2018

A Pennsylvania federal court recently refused to allow a plaintiff to rummage around in the defendant's records of all fax communications that it had sent within the past four years, noting that discovery cannot be used as a way of potentially putting together a separate and unrelated class action for other Telephone Consumer Protection Act violations. The court may have allowed the discovery had there been evidence of other faxes sent in the relevant period.

Potential impacts on telehealth from net neutrality repeal
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 07 February 2018

The Federal Communications Commission (FCC) recently passed the Restoring Internet Freedom Order (RIFO), repealing the FCC's 2015 net neutrality rules and shifting the responsibility for regulating the conduct of internet service providers to the Federal Trade Commission. While the RIFO's effect on video streaming seems to be at the top of most consumers' minds, telehealth experts are concerned that the decision could raise the costs of providing telehealth services.

Net neutrality: from rules to enforcement
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 17 January 2018

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.

Dish Network's Telephone Consumer Protection Act nightmare continues
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 03 January 2018

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.

Florida federal court affirms FTC's available remedies
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 06 December 2017

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.

Human intervention means program not ATDS, Illinois court rules
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 29 November 2017

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.

Eight-figure settlements continue for Telephone Consumer Protection Act disputes
Manatt Phelps & Phillips LLP
  • Tech, Data, Telecoms & Media
  • USA
  • 15 November 2017

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.

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