FTC Attorney on Recent TCPA Litigation Developments by Richard B. Newman, December 3, 2018 Congress Proposes Legislation to Combat Robocalls Congress has proposed a bill to attack robocalls. The “TRACE Act” would expand FCC authority under the Telephone Consumer Protection Act (TCPA) and empower the FCC to mandate call various rules to reduce ID spoofing. Of particular importance, the Act purports to expand the statute of limitations. At present, the FCC is required to issue a notice of TCPA liability within one year of the violation. The TRACE Act would extend the limitations period to three years. The FCC would also be permitted to impose forfeitures of for each TCPA violation, although, practically speaking, the agency has already asserted such authority. In addition to expanded enforcement authority, according to FTC defense lawyer Richard B. Newman, the Act would require the FCC to implement a call authentication protocol for voice service providers, including interconnected VoIP providers, in order to permit carriers to more efficiently block robocallers. The Act also sets forth that the FCC is to utilize a safe harbor for voice service providers that block calls pursuant to a call authentication framework. The TRACE Act would also create an interagency working group to study TCPA enforcement. Although it will likely not pass in 2018, the proposed legislation certainly encourages heavier enforcement of unlawful telemarketing operations, now. Court Holds Predictive Dialer Not ATDS There is certainly no shortage of inconsistency when it comes to judicial interpretation of what the word “capacity” means in the context of the TCPA. A recent telemarketer-friendly decision by a Minnesota district court is noteworthy. In Steward v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), the plaintiff initiated legal action against the defendant, alleging that the latter violated the TCPA by calling his recently assigned cell phone number move than 100 times – leaving 4 pre-recorded messages – to collect a debt owed by someone else. The defendant moved for summary judgment arguing that its dialing technology did not constitute an “automatic telephone dialing system” and it was otherwise reasonable to rely upon the consent from the previous subscriber. The court rejected the plaintiff’s argument that because the defendant’s dialing platform utilized a predictive dialer, it was necessarily an ATDS. In doing so, the court stated that in the wake of ACA Int’l, predictive dialing systems are no longer always considered autodialers under the TCPA. Importantly, the court disagreed with a recent Ninth Circuit ruling and held that the proper inquiry is whether a device has the actual capacity to generate numbers to dial either randomly or sequentially. Also newsworthy is that the court considered the reassigned number issued by evaluating the reasonableness of the caller’s reliance on a prior number holder’s express consent. Noting that defendant had express consent to call using pre-recorded messages from its customer – the prior subscriber – the court concluded that, under the circumstances, it was reasonable for the defendant to rely on the previous subscriber’s consent to call his number and therefore, summary judgment on this issue was proper. Richard B. Newman is an FTC investigation attorney at Hinch Newman LLP. Informational purposes. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777. Attorney Advertising Filed under: Blue Book, Revenue Tagged under: FTC Compliance, Robocalls, TCPA About the Author Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. He is a nationally recognized FTC defense lawyer and advertising compliance attorney. He regularly provides advertising counsel and represents clients in high-profile investigations (CIDs) and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard’s practice also concentrates upon transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements.