FCC Commissioner Delivers Pro-Telemarketer TCPA Speech – May 2019
FCC Commissioner Michael O’Reilly recently delivered a telemarketer defense-oriented speech at an event in Washington D.C. One of the many issues he addressed was the continuing landslide of frivolous Telephone Consumer Protection Act lawsuits.
Commissioner O’Reilly made his opinion clear – the judicial system should stop interfering with the FCC’s primary power to interpret the TCPA because it is creating an unworkable patchwork of interpretations, including what constitutes an automated telephone dialing system. He also opined that the DC Circuit should set aside the FCC’s earlier predictive dialer rulings and that the expansive Ninth Circuit Court of Appeals definition of an ATDS is misguided because it disregards statutory language requiring the use of a random or sequential number generator.
This opinion by Commissioner O’Reilly could potentially be a powerful litigation tool for TCPA defendants.
Senate Passes TRACED Act
On May 23, 2019, the U.S. Senate approved the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act. If passed, the bi-partisan bill would expand the TCPA and give the FCC authority to impose civil penalties of up to $10,000 per call for intentional violations. It would also extends the statute of limitations for violations of the TCPA to three years.
The TRACED ACT would also expands TCPA enforcement jurisdiction to numerous federal agencies, including the Federal Trade Commission, the Department of Justice, the Consumer Financial Protection Bureau, the Department of Commerce, the State Department and the Department of Homeland Security. Non-federal entities and state attorneys general would also have jurisdiction to enforce the TCPA under the Act.
The TRACED Act will not proceed to the House of Representatives. Consult with an experienced TCPA defense and telemarketing compliance lawyer for specific advice on how current and pending legislation might impact your telemarketing lead generation campaigns.
Receipt of Unwanted Text Messages Confers TCPA Standing
Consistent with the U.S. Courts of Appeals for the Third and Ninth Circuits, the Second Circuit recently held in Melito v. Experian Marketing Solutions, Inc. that the receipt of unwanted SMS text messages alone satisfies the injury-in-fact requirement for Article III standing to bring a Telephone Consumer Protection Act claim.
In this pro-plaintiff ruling, the Second Circuit determined that the representatives of a conditionally certified settlement class that allegedly received text messages on their cell phones from American Eagle Outfitters, Inc. possessed standing to bring TCPA claims because “text messages, while different in some respects from the receipt of calls or faxes specifically mentioned in the TCPA, present the same ‘nuisance and privacy invasion’ envisioned by Congress when it enacted the TCPA.”
Notably, both from a substantive telemarketing law and insurance coverage standpoint, the court also stated that the damage was similar to that associated with common law privacy violations.
The decision could potentially lead to more TCPA litigation given that there are now at least three circuits that have held that there is no requirement to establish damage beyond receipt of a text message.
Richard B. Newman is a digital marketing attorney at Hinch Newman LLP. Follow in on LinkedIn at FTC defense lawyer.
Attorney advertising. Informational purposes only. Not legal advice.