
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.”
- August 7, 1995: FCC adopts 1995 Ruling on Petitions to Reconsider Implementing Order
- 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
- March 16, 2018: D.C. Circuit Court of Appeal issues ruling in ACA Int’l Opinion.
- 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
- December 13, 2018: FCC Issues its Final-Recycled-Number-Database-Order
- December 31, 2019: Congress passes Pallone-Thune Telephone Robocall
Abuse Criminal Enforcement and Deterrence Act.
- January 10, 2020: The U.S. Supreme Court grants cert to consider whether the TCPA survives First Amendment review as a content-specific restriction on speech.
- January 28, 2020: Eleventh Circuit Court of Appeals holds the TCPA’s ATDS definition is limited to devices that can dial randomly or sequentially.
- February 19, 2020: Seventh Circuit Court of Appeals holds the TCPA’s ATDS definition is limited to devices that can dial randomly or sequentially.
- It appears a new majority position is developing on ATDS definition. It would not last long.
- March 22, 2020: In response to COVID-19 crisis, FCC issues order clarifying scope of “emergency purposes” TCPA exemption, taking a very narrow read of the text that would limit its utility for non-governmental and non-health related calls. Additional resources:
- April 7, 2020: Second Circuit Court of Appeals ends brief era of ATDS stability by following Marks and adopting broad ATDS approach —TCPA covers text platforms that can send out mass messages with minimal human intervention.
- Holds popular EZ texting platform is an ATDS as a matter of law
- May 1, 2020: Eleventh Circuit Court of Appeals holds contractual consent cannot be unilaterally revoked by consumers.
- June 3, 2020: Ninth Circuit Court of Appeals holds the “called party” for consent purposes is not the person a caller is trying to reach–rather it is either the subscriber or the regular user of a cell phone. This places strict and unavoidable liability on innocent callers when consumers provide inaccurate phone numbers or change numbers.
- June 25, 2020: FCC issues ruling on peer to peer texting– clarifies that texts are only subject to the TCPA if made using an ATDS. ATDS usage does not turn on volume. Rather it turns on the lack of the manual entry of numbers.
- July 6, 2020: The U.S. Supreme Court finds the TCPA’s government-backed exemption is unconstitutional but severs the provision to uphold the statute in a dark day for free speech in America. Additional resources:
- July 7, 2020: Facebook files supplemental brief in support of SCOTUS review of circuit split of TCPA’s ATDS definition;
- December 18, 2020: FCC clarifies that soundboard calls constitute the use of a prerecorded call.
- December 18, 2020: FCC reconsiders Broadnet Ruling–holds that only State and Federal governments are exempt from TCPA.
- December 29, 2020: FCC limits the use of prerecorded calls to landlines without consent, abrogating previous exemptions for commercial purposes and healthcare-related calls, amongst others.
- See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 CG Docket No. 02-278, Report and Order (Dec. 30, 2020).
- TCPAWorld coverage here: https://tcpaworld.com/2021/01/07/bringing-it-all-together-what-callers-in-each-industry-need-to-know-right-now-about-the-fccs-big-late-2020-rulings-on-the-tcpa-and-carrier-call-blocking/
- April 1, 2021: Supreme Court hands down Facebook ruling holding that TCPA’s ATDS definition is limited to devices with the capacity to “store or produce” telephone numbers to be dialed using an ATDS.