January 25, 2021

Volume XI, Number 25

Advertisement

January 22, 2021

Subscribe to Latest Legal News and Analysis

Happy Thanksgiving TCPAworld!: Here Are the Top 10 TCPA Stories to be Grateful For This Time of Year

I know that many of you have the sense that its all-bad-news-all-the-time around here and feel like there are simply no silver linings to be found– but there is ALWAYS something to be thankful for in life, and TCPAWorld is no exception.

And I know, I know, you’re all very thankful the Czar– and I’m thankful for you too. But this isn’t a hugathon folks, its a learn-all-about-it-athon. So without further adieu, here are the top 10 TCPA stories you should be thankful for this year:

No. 10: There’s a Great Book Out About the TCPA and It is Really Quite Funny

I know most of you spend those long winter nights catching up on old Unprecedented episodes with the family and perusing TCPAWorld stories you may have missed throughout there year, but you can add another festive activity to your eggnog-laden December evenings: reading Dennis Brown’s self-published TCPA masterpiece “Telephone Terrorism– The Story of Robocalls and the TCPA.”

Great book. Great subject matter. Really funny. The only downside is that its too quick of a read– I blew through it in a single afternoon and I was left wanting more.

Maybe 2021 will see the Czar writing his own TCPA novel? We’ll see if holiday wishes really do come true.

No. 9: At Least One Court Has Found that Knowledge of TCPA Violations Alone is not Enough to Hold a Corporate Officer Personally Liable for the TCPA

I’ve said it before and I’ll say it again– the rule holding corporate officers and employees personally liable for TCPA violations by the company is amongst the most unfair rules in the entire legal world. It makes no sense that folks trying to help companies comply with the TCPA might be held personally liable for accidental violations. Gross.

The Seventh Circuit Court of Appeals has pushed back a bit against this rule, however, and determined that mere knowledge of a TCPA violation alone does not trigger personal liability.

Give how disastrous personal liability can be for employees working for companies facing TCPA risk, any ruling ameliorating tis profoundly unfair rule is truly something to be thankful for.

No. 8: Courts Are (Slowly) Catching on to the Idea that Responses to Consumer Requests for Information About a Product or Service Are Not Marketing Messages

The line between marketing and informational messages can sometime be extremely blurry. And when you consider that courts are supposed to apply “common sense” in assessing whether a neutral message might yet have been sent with a “dual purpose” to market, or as a “pretext,” it starts to feel like determining if a message might be marketing is a bit of a crap shoot.

Still the law is slowly trending toward a workable framework in which responses to consumer requests for information are not treated as marketing (requiring WRITTEN consent)– but rather as informational calls (requiring the consumer to have merely supplied their phone number in requesting information.) This is a huge deal for direct mailers or advertisers that field massive numbers of inbound calls from consumers seeking information and then have to return those phone calls–often without express written consent. Its also important for folks whose disclosures don’t quite live up to the letter of the law for marketing purposes. Either way its nice to see “common sense” is slowly starting to be applied with a little common sense.

No. 7: The FCC Clarifies that P2P Texting Does not Violate the TCPA– Sort Of

I remember reading the Marks ruling for the first time and getting extremely excited at the beginning of the ruling– when the Ninth Circuit held that the FCC’s earlier braod TCPA rulings had been set aide by ACA Int’l–only to have my excitement turn to shock and ultimately agony as I read the rest of the opinion.

Reading the FCC’s recent P2P rulings was a similar experience, only a bit watered down. The ruling was seemingly great for businesses and candidates using P2P text solutions, but somehow the language didn’t quite match what the ruling seemed to be saying– if you know what I mean. Read one way the ruling is a huge win authorizing P2P texts across the broad. Read another way the ruling simply confirmed that texts launched by the manual entry of an entire phone number and an entire message didn’t violate the TCPA so long as the system didn’t otherwise have the capacity to act as an ATDS–which is not really very helpful at all.

While courts are struggling with what, exactly, the ruling means– we should all be thankful that the FCC certainly seems to have blessed P2P texting platforms, even if the language of the ruling is somewhat open to interpretation.

No. 6: Some Manufactured TCPA Lawsuits Are Getting the Boot

Ever since my huge win back in Stoops, manufactured TCPA lawsuits should be subject to dismissal. Unfortunately, TCPA defendants have–by and large–not leveraged the case properly, resulting in an avalanche of decisions distinguishing Stoops and allowing repeat TCPA litigators to continue to thrive in the courtroom.

But as two recent court decisions prove, leveraging Stoops properly can lead to big wins– such as where a Plaintiff engages in conduct designed specifically to attract more TCPA violations, or uses a business number specifically to set a trap for marketers. 

No. 5: TCPA Filings are Flat Year Over Year–And Declining

TCPA filings are up a meager 4% year to date over last year. But there were a huge number of early-year filings but they have mostly dwindled as the year has run on.

Indeed the last couple of months have seen a sharp decline in TCPA filings as Plaintiff’s lawyers keep their powder dry and await the big SCOTUS ATDS ruling. In fact, I have talked to a number of TCPA plaintiffs lawyers who openly admit they are holding on to TCPA suits that will be filed, if at all, only after the Supreme Court hands down its big Facebook ATDS ruling (more on that below).

Even if the low TCPA count this year might be a bit of a mirage–and TCPAWorld might be facing a huge surge next year–the brief respite is still something to be thankful for.

No. 4: The Eleventh Circuit Court of Appeals

One of the things callers should be MOST thankful for this year is that the entire Eleventh Circuit Court of Appeal woke up some sleepy Tuesday in September, went to its toolshed, found a flamethrower, and decided to torch TCPA class actions in the jurisdiction.

For about a year now the Eleventh Circuit has systematically dismantled the TCPA machine that had built up in Florida. It was a remarkable turn of events–worthy of its own TCPA novel– as the once-friendliest jurisdiction for TCPA suits flipped on a dime and became the ultimate Defense paradise.  

No. 3: Facebook Looks Like a Heavy Favorite to Win Its SCOTUS ATDS Appeal

Hopefully I didn’t just jinx them, but Facebook is really looking strong headed into oral argument on December 8, 2020. With Justice Barrett–the former Seventh Circuit Court of Appeals judge that wrote the defense-friendly Gadelhak decision— installed at the Supreme Court, Facebook is playing with a stacked deck. But the incredibly persuasive work by the U.S. Government (i.e. the Solicitor General’s office) is the real ace in the hole here.

The TCPAWorld.com probability dial–which once showed Duguid as a slight favorite following the AAPC ruling–is now suggesting an 85% chance of victory for Facebook. That’s a big swing in our analytic simulation model, which doesn’t actually exist.

And remember, if Facebook pulls it off it was all thanks to TCPAWorld.com convincing the Supremes to take the appeal in the first place. That’s how I remember it anyway.

No. 2: All Robocalling Sins Have Been Wiped Away for a Long Four Years –According to Some Courts Anyway 

Undoubtedly the biggest TCPA story of 2020 is the Supreme Court’s big ruling in AAPC and the profound impact it (may have) had on liability for calls made prior to July 6, 2020. 

Like so much else in TCPAWorld, the impact of AAPC turns on your point of view. From one perspective the Supreme Court ruling was a ho-hum decision isolating a single exemption for First Amendment review and severing it when things didn’t line up for it. From another perspective–mine–it was a free-speech-killing first-of-its-kind ruling that turned the First Amendment into an ironing board. But from another–critical–perspective it was a ruling in which the U.S. Supreme Court determined the entire TCPA was unconstitutional and had to save the enactment by severing a content-specific exemption.

This later perspective is what animates two huge district court rulings that have determined that all calls made between November, 2015 and July, 2020 are simply not actionable. This is so because the TCPA was unconsttutional during that entire timeframe. This remarkable ruling means that the vast majority of calls made during the height of the Robocall epidemic of the 20teens are simply beyond the reach of plaintiff’s lawyers.

As I have suggested previously, by wiping out TRILLIONS in TCPA exposure the rule of Creasy and Lindenbaum amount to one of the largest wealth transfers (or at least, risk write downs) in human history. These are remarkable rulings, that are truly worth giving thanks for.

No 1: TCPAWorld.com Keeps Cranking out the Must-Read Content– and the VIDEOS

Rather obviously the thing TCPAWorld denizens should be most thankful for this year-and every year–is the hard working team here at Squire Patton Boggs and TCPAWorld.com. Not only do we deliver great first-in-the-nation wins, we break down every TCPA story as it happens, virtually in real time. And we’re not going to stop any time soon.

Plus, when COVID hit we moved to VIDEO podcasts to better engage with you folks and have been pumping out free webinars and learning sessions to make sure that YOU are armed with the information you need to protect yourself in the turbulent TCPA world.

And of course, we do it all for free. With no barriers to content. No unnecessary sign ups. No advertising. No pop up adds. No data sales. No nothing.

So when you raise your glass of cider over that delectable Thanksgiving feast on Thursday, you’ll be forgiven if TCPAWorld.com enters into the discussion of the list of things you’re most thankful for this year.

And we, of course, are endlessly thankful for each of you as well.

I guess this was a hugathon after all.

Stay grateful TCPAWorld.

Advertisement
© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 329
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
Advertisement
Advertisement