Joseph C. Wylie II, Nicole C. Mueller, Jonathan R. Vaitl Since the U.S. Supreme Court issued its decision in Facebook v. Duguid,1 district courts have wrestled with the language of one particular footnote that appears, at least on the surface, to suggest that equipment that randomly or sequentially generates the order in which to dial pre-populated phone numbers qualifies as an automated telephone dialing system, or autodialer.2 The majority of district courts have rejected this interpretation, but until recently, few circuit courts had weighed in. In November, the Ninth Circuit became the sec ..read more

By Joseph C. Wylie II, Nicole C. Mueller, Jonathan R. Vaitl Under the plain language of the Telephone Consumer Protection Act of 1991 (TCPA) and its regulations, only “residential telephone subscribers” have a right of action for violations of the do-not-call registry.1 The issue becomes murky, though, when a number is used for both residential and business purposes. The Ninth Circuit recently addressed this question and concluded that there is no simple answer when determining whether a mixed-use line is “residential” but, instead, requires a fact-intensive inquiry into each individual number ..read more

By Joseph C. Wylie II, Molly K. McGinley, Jonathan R. Vaitl While claims under the Telephone Consumer Protection Act have become more difficult for plaintiffs to assert successfully following the U.S. Supreme Court’s decision in Facebook v. Duguid,1 several states, such as Florida, have taken the initiative to enhance their own telemarketing restrictions. Washington has become the latest state to join that trend. House Bill (H.B.) 1497,2 which goes into effect on 9 June 2022, revises portions of the state’s existing telemarketing laws to, among other things, broaden the scope of how the law de ..read more

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller, Jonathan R. Vaitl On 5 August 2021, Governor Andrew Cuomo a statewide disaster emergency due to gun violence that he first declared on 6 July 2021. As previously discussed in our March 2020 post about Governor Cuomo’s COVID-19 emergency declaration, under New York’s Do Not Call Registry statute and its Telemarketing and Consumer Fraud and Abuse Protection Act, it is illegal to knowingly make unsolicited telemarketing sales calls to areas of the state under an emergency declaration. The Governor’s latest executive order declaring a st ..read more

By Molly K. McGinley, Joseph C. Wylie II, Sebastian Crisan (CI SA) In May 2021, the Florida legislature passed Senate Bill 1120 (Florida Robocall Bill), which updates the state’s existing telemarking laws. The proposed changes parallel certain provisions in the federal Telephone Consumer Protection Act (TCPA), including: Requiring prior express written consent for calls made using an automated selection and dialing system; and Creating a private cause of action for any violation of the do not call provisions. The Florida Robocall Bill requires express written consent for telephonic sales cal ..read more

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau On Tuesday, December 8, 2020, the United States Supreme Court heard oral argument on the question of what type of dialing equipment qualifies as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA). The Court granted certiorari to resolve a split among the federal circuit courts of appeals that had construed the meaning of the term. The Ninth Circuit ruling on review had reaffirmed a broad definition of ATDS, but other recent decisions had construed t ..read more

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau On Thursday, the United States Supreme Court agreed to review the question of what type of dialing equipment qualifies as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA).  The Court’s review arises from a challenge to the Ninth Circuit’s broad definition of ATDS.  The plain language of the TCPA states that an ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number ..read more

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau On Monday, the United States Supreme Court issued a decision upholding the broad prohibition against autodialed calls to cells phones under the Telephone Consumer Protection Act (TCPA) but ruling that a 2015 exception, which had allowed autodialed calls for the purposes of collecting federally-backed debts such as student loans and mortgage debts, violated the First Amendment.  Thus, the Court held that the exception is invalid and must be severed from the statute.  Under Section 227(b ..read more

By Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie II, Molly K. McGinley, and Hollee M. Boudreau The Federal Communications Commission (FCC) recently issued a declaratory ruling on a petition seeking clarification of the definition of an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.  In its order, the FCC ruled that a text messaging platform that requires a person to actively and manually dial a recipient’s number and transmit those messages, and that lacks the capacity to transmit more than one message without a person ..read more