The Federal Communications Commission considers the definition of an automatic telephone dialing system (“ATDS”), robocall legislation looms in Congress.

The Senate recently passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”).  The House of Representatives has now introduced House Bill 3375, proposed legislation that would clarify the definition of a “robocall” and TCPA exemptions, solidify the effectuation of a national reassigned telephone numbers database, and mandate that the FCC and FTC lawyers coordinate to reduce robocalls.

It would also require, without limitation:

  • The FCC to clarify the meaning of ATDS and “artificial or prerecorded voice”
  • Carriers that offer call blocking services to consumers on an opt-out basis must ensure that those services do not result in additional charges
  • Voice service providers to implement call authentication technology at no additional cost
  • The FCC to implement methodologies to protect consumers from unauthenticated calls
  • An extension of the period within which the FCC can initiate enforcement proceedings
  • The FTC and FCC to report to Congress annually regarding its efforts to curb robocalls and spoofed calls

Supreme Court Punts on Important TCPA Issue

On June 20, 2019, the U.S. Supreme Court issued a highly anticipated opinion in PDR Network LLC, et al. v. Carlton & Harris Chiropractic.  Many had hoped that the decision would finally provide telemarketers and TCPA litigants with guidance and clarify regarding the interplay between FTC regulations and the judicial interpretations.

It did not.

Justice Breyer, along with Justices Roberts, Ginsburg, Sotomayor and Kagan joining, kicked the can down the road on the issue of whether prior FCC TCPA guidance has the force and effect of law, or if it is merely advisory in nature.  If the latter, courts would not be required to follow such guidance.

Unfortunately for telemarketers, the opinion will probably create more uncertainty for TCPA litigants and fail to put an end to the continued judicial expansion of the TCPA, including the definition of an ATDS.

More State Privacy Legislation

States continue to enact data privacy legislation.  Count Nevada and Main in, while New York considers proposed legislation that looks eerily similar to the California Consumer Privacy Act.

Digital marketers may not yet be familiar the Nevada legislation.  They should be because it provides consumers with the ability to prevent website operators and online service providers from selling specified “personal information.”  Additionally, the Nevada becomes effective this year, not in 2020 like the CCPA.

The Maine law essentially revives net neutrality rules.  With limited exception, ISPs are required to obtain opt-in consent prior to using, disclosing, selling or permitting access to a consumer’s prohibited personal information.  Notably “personal information” is broadly defined to cover web-browsing history, geolocation information, IP addresses and device identifiers, among other data.  ISPs cannot refuse service or penalize customers that choose not to provide their consent.

The Maine law becomes effective July 1, 2020.

The New York law would require opt-in consent before companies could use consumers’ “personal data” (web activity and online search history).  Yet, another indication that state privacy legislation is aimed at behavioral marketing.

The proposed New York Privacy Act (SB 5642) contains a requirement that businesses act as a “data fiduciary” with respect to securing personal data.  It would also permit consumers could also learn what data companies have collected about them, learn who it is shared with and permit consumers to request that information be corrected or deleted.  It would also provide for a  private right of action and apply to all companies.  The CCPA has threshold requirements in order to be considered a “covered entity.”

Ad tech is under attack and digital marketing compliance becoming more challenging.  Let’s hope for more favorable national legislation.

Contact Federal Trade Commission CID investigation attorneys if you are the subject of an FTC investigation or enforcement action.

Richard B. Newman is an advertising and privacy law attorney at Hinch Newman LLP.  Follow FTC defense attorneys on Twitter.

Attorney Advertising. Informational purposes only. Not legal advice.