The Developments That Rocked TCPAWorld

gray scale photo of active volcano
Photo by Archie Binamira on Pexels.com

Here you will find a breakdown of the biggest TCPA decisions and developments out there in an easy all-in-one-location.

These are the red-letter dates that made TCPA history:

  • December 20, 1991: The Beast is Born– Congress amends Title II of the Communications Act of 1934 by adding a new section, 47 U.S.C. Section 227–soon to be known as the TCPA.

 

  • September 17, 1992: FCC Adopts 1992 Implementing Order
    • FCC emphasizes “that the term autodialer does not include the transmission of an artificial or prerecorded voice.
    • FCC first finds: “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number
      which they have given, absent instructions to the contrary.”
    • FCC specifically finds that debt collection calls are “commercial calls which do not adversely affect privacy rights and which do not transmit an unsolicited advertisement.”

 

 

  • July 3, 2003: FCC adopts 2003 Report and Order
    • FCC holds–for the first time–that predictive dialers are subject to the TCPA because “[t]he basic function of such equipment [is] the capacity to dial numbers without human intervention.”

 

  • January 4, 2008: FCC Adopts First 2008 Declaratory Ruling
    • Confirms that numbers provided to callers in connection with the transaction giving rise to a debt can be called using automated technologies absent instruction to the contrary
    • Suggests that creditors are always liable for calls made by third-party collectors (likely abrogated by later rulings)
    • Burden of production is imposed on caller if dispute over consent arises
    • Affirms earlier ruling that predictive dialers are subject to the TCPA

 

  • November 21, 2008: Leckler v. CashCall, 2008 WL 5000528 (N.D.Cal. Nov. 21, 2008)–the first time the Hobbs Act is mentioned in TCPA jurisprudence
    • Reversed Court’s earlier order refusing to follow FCC’s presumed “express consent” rule
    • Determined that under the Hobbs Act court lacked jurisdiction to decline to follow any FCC declaratory ruling respecting the TCPA

 

  • June 19, 2009: Satterfield v. Simon & Schuster, Inc.., 569 F. 3d 946 (9th Cir. 2009)–the case that started it all.
    • Recognized that FCC rulings interpreting the TCPA were owed Chevron deference
    • Text messages are calls
    • “Express consent” means consent that is clearly and unmistakably stated
    • Oddly doesn’t mention the Hobbs Act

 

  • January 18, 2012: United States Supreme Court decides Mims v. Arrow Financial Services
    • Determines that federal district courts have jurisdiction to hear TCPA cases–throws open the courthouse doors to litigation and spawns huge increase in TCPA filings
    • Focuses on telemarketing abuse as the core driver for TCPA enactment

 

  • February 15, 2012: FCC Adopts Another TCPA  Report and Order
    • Requires express written consent for telemarketing calls to cell phones made using automated technologies
    • Defines express written consent and clear and conspicuous requirements
    • Does away with established business relationship exemption
    • Affirms that debt collection calls do not require express written consent

 

  • May 11, 2012: Seventh Circuit Court of Appeal decides Soppet v. Enhanced Recovery
    • Holds that the “called party” for purposes of consent is the current subscriber to the phone number being called
    • Essentially imposes strict TCPA liability on callers who unintentionally call a wrong number due to  a number changing hands or being improperly provided by a customer.

 

  • September 17, 2012: Court grants Arthur v. Sallie Mae Final Approval Order
    • First major TCPA class action settlement in history
    • $24.1MM settlement on behalf of slightly under 8MM class members–set settlement “market price” for years to come

 

  • May 9, 2013: FCC adopts May 9, 2013 Declaratory Ruling
    • Concludes that vicarious liability principles apply to the TCPA
    • Sellers are not directly liable for calls made by third-party contractors merely because the calls are made on their behalf

 

  • August 22, 2013: Third Circuit Court of Appeal hands down Gager v. Dell Financial Services, Inc.
    • Holds restatement approach to consent applies to TCPA
    • Allows oral revocation of consent by consumers (previously there was a split of authority on this issue)

 

  • July 10, 2015: The Date that Will Live in TCPA Infamy— FCC Adopts Omnibus TCPA Order
    • Affirms predictive dialers qualify as ATDS despite the fact that not all such dialers randomly or sequentially generate numbers
    • Holds that “capacity” of ATDS to dial randomly or sequentially generated numbers includes potential or latent capacities
    • Rules that all software-enabled dialing devices have the flexibility necessary to be potentially capable of performing the functions of an ATDS
    • Fails to clearly define functionalities of ATDS–resulting in eventual reversal by D.C. Circuit Court of Appeal.
    • Definition of ATDS converts every smartphone in America into an ATDS.
    • Rules that a consumer can revoke their consent in any “reasonable manner”.
    • Rules that the “called party” for purposes of consent is the “subscriber” or “customary user” of a cell phone.
    • After concluding that callers can “reasonably” rely on consent of former subscriber for unspecified period of time, grants only a one-call “safeharbor” for calls to recycled numbers. This portion of the ruling was later reversed.
    • Text messages are “calls” subject to the TCPA.
    • The word “dial” includes transmission of sms data to wireless carriers via e-mail using their internet portals.

 

  • July 5, 2016: FCC adopts latest TCPA Declaratory Ruling (Broadnet Petition)
    • Determines that neither the federal government nor its contractors are “persons” subject to the TCPA.

 

  • August 11, 2016: FCC adopts yet another Declaratory Ruling (Implementing BBA)
    • Purports to implement Bi-Partison Balanced Budget Act of 2015 carve out for collectors of federally-backed debt.
    • Creates significant restrictions on the number and content of calls collectors of federally-backed debt can placed without consent.
    • Applies calling restrictions to federal government and contractors despite ruling in Broadnet Petition (that federal government is not “person” subject to the act).
    • Ruling is never actually adopted into law. 

 

  • June 22, 2017: Second Circuit Court of Appeal hands down Reyes v. Lincoln Automotive Fin. Services
    • Holds consent in consumer contract is an irrevocable term of a contract if it is a mutually-bargained for provision

 

 

  • June 26, 2018: Third Circuit Court of Appeal hands down Dominguez v Yahoo
    • Holds that ACA Int’l set aside portions of the Omnibus
    • Determines that a dialer must have the present capacity to act an an ATDS
    • Identifies ATDS functionalities as the ability to dial randomly or sequentially

 

  • September 20, 2018: Ninth Circuit hands down Marks v. Crunch San Diego, LLC
    • Holds that all previous FCC ATDS rulings were overturned by ACA Int’l
    • Re-defines the TCPA’s ATDS definition to remove the requirement of random or sequential number generation
    • A device is an ATDS if it has “capacity” to “store” and dial numbers “automatically”
    • Meaning of the term “capacity” left undecided