• Best CPA Networks
  • Best Cost-Per-Sale Affiliate Networks
  • Best Pay-Per-Call Networks
  • mThink Digital
  • Thought Leadership
    • White Papers
  • About
    • Content Marketing
    • Content Strategy
      • Web Content
      • Social Media Strategy
      • Webinars & Video
      • Thought Leadership
    • Performance Marketing
    • Portfolio
      • Revenue Performance
      • Accenture
      • Microsoft
      • Java Detour
      • Our Process
    • Contact Us

mThink

Blue Book Logo

BlueBook Logo

The Trusted Name in Performance Marketing

ROS Leaderboard

  • Home
  • Blue Book
    • About Blue Book
    • Blue Ribbon Panel
    • Interviews
    • Research Methodology
    • Back Issues
    • Advertising
      • Website Creative Specifications
      • Newsletter Creative Specifications
  • Best CPA Networks
  • Best Cost-Per-Sale Affiliate Networks
  • Best Pay-Per-Call Networks
  • Best European CPA Networks
  • Best CPA Networks for Affiliates
  • Best CPA Networks for Advertisers

TCPA Alert December 2018

December 11, 2018 by Richard B. Newman

FCC Releases Draft Order to Combat “Robocalls”

The Federal Communications Commission recently released two draft orders intended to address  unlawful robocalls.

The first establishes a nationwide reassigned number database in order to address caller liability under the Telephone Consumer Protection Act when the new user has not provided prior express written consent.  The FCC believes that a comprehensive database of numbers that have been permanently disconnected and are available for reassignment will enable telemarketers to inquire as to whether the telephone number remains associated with the intended party.

The order obligates providers with direct or indirect access to telephone numbers to provide monthly reports.  The draft order’s definition of “permanent disconnection” does not include telephone numbers that have been ported to another carrier.  Providers would also be required to hold disconnected numbers for 45 days before reassignment is permitted.

The draft reassigned number database order does not address the issue of a  safe harbor for callers using the database or the definition of a “called party.”  It is anticipated that the FCC will do so shortly.

The second draft order classifies SMS text messages as “information services” in order to assist wireless providers ability to block them.  According to the FCC, the classification “will empower wireless providers to continue their efforts to protect consumers from unwanted text messages.  Conversely, according to the FCC, Title II regulation “would harm those efforts and open the floodgates to unwanted text messages—drowning consumers in spam at precisely the moment when their tolerance for such messages is at an all-time low.”

Court Finds No Ambiguity in ATDS Definition

The TCPA autodialer (ATDS) definition following the Ninth Circuit Marks decision has been a subject of great interest to marketers, plaintiffs’ attorneys and courts.  A District Court in the Northern District of Illinois recently reconsidered a ruling it made in 2014, expressly rejecting the Ninth Circuit’s expansive interpretation of an ATDS.  Johnson v. Yahoo!, Inc., No. 14-cv-02028 (N.D. Ill. Nov. 29, 2018).  This the second court outside of the Ninth Circuit to do so.

In 2014, the lower court followed prior FCC rulings that interpreted ATDS “to include systems that dialed numbers pulled from a stored list without human intervention.”  Upon reconsideration, the court found it was no longer bound by the FCC’s prior predictive dialer rulings because of the recent decision by the D.C. Circuit in ACA Int’l and its option to revisit its definition when confronted with arguments about the statutory text.

The court recognized that the Ninth Circuit believes “the statutory language is ambiguous enough to include a device that dials numbers from a stored list (without random or sequential number generation.”  However, it read the statute differently and concluded that the definition of ATDS is “not ambiguous.”  It reasoned that the phrase “using a random or sequential number generator” applies to the numbers to be called and an ATDS must either store or produce those numbers, and dial them.   (and then dial them).  Organized lists of telephone numbers that have been developed without random or sequential number generation capacity fall outside the TCPA’s scope, the court stated.

 

If you are interested in learning more about TCPA litigation trends or if you have been served with process, please email the author at  rnewman@hinchnewman.com.

Richard B. Newman is an FTC attorney at Hinch Newman. 

Attorney advertising. Informational purposes only. Not legal advice. Previous results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

Related posts:

  1. FTC Attorney on Recent TCPA Litigation Developments Congress Proposes Legislation to Combat Robocalls Congress has proposed a...
  2. Individualized Issues of Consent Result in TCPA Class Action Certification Denial Class actions are designed to promote the efficiency of litigation...
  3. A Sideways Look At Performance Marketing The Blue Book Top 20 rankings were launched almost eight...
  4. Five Essential Questions To Ask Your Network Advertisers choosing a new network partner have to take a...

Filed Under: Blue Book, Revenue Tagged With: affiliate marketing, FTC Compliance, Robocalls, TCPA

Search

ROS Col 2 Top

ROS Col 2 Mid

ROS Col 2 Low

Subscribe to our newsletter!

* indicates required

ROS Col 2 – 4 Misc

ROS Col 2 – 5 Misc

ROS Col 2 – 6 Misc

Recent Posts

  • How MyLead works, and what sets it apart from other affiliate networks?
  • You Can Build Successful Lead Partnerships! Here Are 5 Questions To Get You Started
  • How To Build Long-Term Partnerships For Success
  • Interview with Rakuten Advertising’s Managing Director of North America, Anthony Capano
  • How To Source, Vet & Grow Quality Publisher Partnerships For Pay-Per-Call
  • FTC Settlement With Credit Karma Underscores Agency Attention to A/B Testing
  • Rakuten Advertising named mThink’s Best Affiliate Network for 12 Consecutive Years
  • 2023: Challenges, Opportunities & Predictions
  • Top 4 Best Practices For Consumer Finance Campaigns
  • Four Moments That Changed Performance Marketing Forever
  • New additions, improvements, and added perks from your favorite CPA network
  • Your Top 5 Affiliate Marketing Questions Answered
  • 5 strategies to create better content
  • FCC Says Ringless Voicemails Require Prior Consent
  • Top 5 Free Methods to Increase Affiliate Traffic

About mThink

mThink is a specialist digital marketing company based in San Francisco. We focus on media buying, Facebook marketing, direct response, social and mobile. In addition mThink produces the annual Blue Book Rankings of major performance marketing networks. Read More »

Baseboard

Copyright ©2023 · mThink. All rights reserved.
3053 Fillmore Street, Suite 325 | (415) 787-0250
Disclaimer | Privacy Policy