Category Archives: Telephone Consumer Protection Act

Subscribe to Telephone Consumer Protection Act RSS Feed

Class Action TCPA Case Dismissed Because Calls Were Made Solely To Collect a Debt Owed To Or Guaranteed By The United States

The Pennsylvania Higher Education Assistance Agency autodialed student debtor, Neil Silver, in January 2014 in an effort to collect on student debt. Silver claimed that these calls were made without his consent, and therefore violated the Telephone Consumer Protection Act.  In February 2014, Silver filed a class action lawsuit against the Education Assistance Agency seeking … Continue reading this entry

Significant Exception to TCPA Likely to Pass

Congress is about to pass the Bipartisan Budget Agreement of 2015. The budget agreement includes significant amendments to the Telephone Consumer Protection Act. As proposed, the TCPA will soon permit autodialed calls to cell phones, without the called party’s prior express consent, if the call is made solely to collect a debt owed to or … Continue reading this entry

Reply Brief filed in Spokeo v. Robins – Oral Argument next on Nov. 2

In its reply brief in Spokeo v. Robins, petitioner Spokeo comes out of the gate with the consequential argument that for Robins to prevail, the Supreme Court must accept his position that every violation of a statutory right qualifies as an injury-in-fact. Indeed, the case is much larger than Fair Credit Reporting Act (FCRA) inaccuracies … Continue reading this entry

D&O Policies: A Possibility for TCPA Coverage?

Business is booming for plaintiffs’ attorneys wielding the Telephone Consumer Protection Act (TCPA). The TCPA restricts unsolicited telemarketing by fax, voice calls and text messages. Violations can trigger liability of at least $500 for each fax, text or call. The prospect of lucrative recoveries has proven to be attractive, with the volume of TCPA class … Continue reading this entry

Strip Club Beats TCPA Case With Human Intervention

The Sapphire Gentlemen’s Club in Las Vegas sends promotional text messages to its customers. Doing so involved multiple steps. First, a Club employee inputs telephone numbers into a mobile marketing website. He does this by either manually typing the number or by uploading or cutting and pasting an existing list of phone numbers to the … Continue reading this entry

The FCC Broadens TCPA's Reach: More Lawsuits Ahead!

The Federal Communications Commission (“FCC”) issued its declaratory ruling and order addressing over 20 pending petitions on Friday, July 10, 2015. This new ruling effectively requires companies to make a fresh evaluation of their telephone technology and, in most cases, change existing policies and practices. Some of the rulings of general applicability are described in this post.… Continue reading this entry

FCC Approves New TCPA Rules

Today, the FCC ruled on 21 long-standing petitions and letters seeking clarifications of the Telephone Consumer Protection Act. FCC Chairman Tom Wheeler’s proposed rules were approved with a 3-2 vote.  While it remains unclear when the FCC will publish the new ruling, it is clear the new rules are mostly bad for businesses which use automatic … Continue reading this entry

FCC Chairman Proposes New TCPA Rules

The FCC is ready to rule on long-standing petitions seeking clarifications of the Telephone Consumer Protection Act and related FCC regulations. On May 27, 2015, FCC Chairman Tom Wheeler circulated a proposed regulatory ruling to fellow commissioners, which would address issues raised in more than 20 pending petitions. The fact sheet summarizing the chairman’s proposal … Continue reading this entry

Supreme Court to Decide Whether Offer of Judgment Can Moot TCPA Class

Deciding to step in to resolve a splint in the Circuits, the United States Supreme Court announced today that it granted a petition for a writ of certiorari in Campbell-Ewald Co. v. Gomez, No. 14-857. That means that the Court will finally address an issue left open in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. … Continue reading this entry

Devastating TCPA Fine Levied Against Small Roofing Company

David Randall Associates, Inc. has provided commercial roofing services in eastern Pennsylvania, New Jersey, and mid-state Delaware for the past 25 years. Last Friday, the company was hit with a $22,405,000 TCPA fine in a class action alleging it sent over 44,000 unlawful fax advertisements to roofing prospects without their permission. The award will be … Continue reading this entry

Telephone Consumer Protection Act Express Consent Narrowed Again

Albert Nigro just wanted to turn off his deceased mother-in-law’s electricity. He called the electric company, but it required that he provide his mobile telephone number to disconnect service. It turned out though that the mother-in-law had an outstanding bill of $68. Nigro did not know about that when he gave his number. He was not legally required to … Continue reading this entry

Client Alert: Ademi & O’Reilly Enter the TCPA Fray

Serial class action filers Ademi & O’Reilly have filed four Telephone Consumer Protection Act cases in Wisconsin in the past week. Is Wisconsin about to become the next hotbed of TCPA litigation? Maybe. For more than two years, Ademi & O’Reilly have filed class action lawsuits concerning the Fair Debt Collection Practices Act nearly every … Continue reading this entry

Mais Reversed: If You Give Me Your Number, I Can Call It, However I Want

“If you give me your number, I can call it, however I want.” For more than twenty years this statement has summarized the Federal Communications Commission view of prior express consent under the Telephone Consumer Protection Act. On September 29, 2014, the United States Court of Appeals for the Eleventh Circuit vindicated that view by overruling an … Continue reading this entry

Eleventh Circuit Hears Oral Argument in Landmark TCPA Case

Industry now waits as the Eleventh Circuit considers whether to overturn a Florida district court decision rejecting the Federal Communications Commission’s definition of prior express consent under the Telephone Consumer Protection Act. On September 18, 2014, the United States Court of Appeals for the Eleventh Circuit heard argument in the Mais v. Gulf Coast Collection … Continue reading this entry

Blast Fax Cases Now Harder to Certify

acts and regulations
Blast fax cases filed under the Telephone Consumer Protection Act just became harder to certify in Minnesota. On August 5, 2014 U.S. District Court Judge David S. Doty, in the case Sandusky Wellness Center LLC v. Medtox Scientific, denied Sandusky’s motion for class certification because the members of the proposed class were not objectively ascertainable. Here … Continue reading this entry

Eleventh Circuit Further Muddies the Waters for Collectors

The Telephone Consumer Protection Act’s safe harbor for calls made with the prior express consent of the called party is destroyed the moment the debtor says, “Stop calling me!” So too, a collector can be liable for autodialed calls to a third party even though a debtor gives that number as her own. These are … Continue reading this entry

Good Faith as a TCPA Defense?

Good faith might be a defense to a TCPA claim according to Judge Roger T. Benitez of the U.S. District Court for the Southern District of California. In Chyba v. First Financial Asset Management, Inc. plaintiff Pamela Chyba sued First Financial Asset Management, Inc. under the Telephone Consumer Protection Act. She claimed that First Financial … Continue reading this entry

The Court Weighs in Regarding the Significance of “Capacity” Versus Actual Use of Autodialers Under the TCPA

In a recent case, Hunt v. 21st Mortg. Corp., 2013 U.S. Dist. LEXIS 132574, (N.D. Ala.,. Sept. 17, 2013) the court concluded that based on the facts of that particular case, it was limiting the definition of “automatic telephone dialing system” to mean a system that had the present capacity, at the time the calls … Continue reading this entry

More TCPA Lawsuits Coming: Express Consent Can Be Revoked at Any Time

Express consent to be called using an autodialer can be revoked at any time, says the U.S. Court of Appeals for the Third Circuit. On August 22, 2013, in Gager v. Dell Financial Services, LLC, the Court attacked a common understanding of the Telephone Consumer Protection Act among many creditors and debt collectors: Once a … Continue reading this entry

Judge Scola Strikes Again: Rejects Traditional Standard for Express Consent Under TCPA

A little over a month after deciding Mais v. Golf Coast Collections Bureau, Inc., Judge Robert Scola has again ruled that the FCC’s 20 year old order regarding express consent under the Telephone Consumer Protection Act has no statutory support. The TCPA prohibits calling a person cellular telephone using an autodialer or leaving an artificial or prerecorded … Continue reading this entry

No TCPA Express Consent When Instructions to the Contrary are Provided

The Federal Communications Commission has long held that a person who knowingly releases his telephone number to a person or entity has in effect given his permission to be called at that number unless he provides “instructions to the contrary.” In a recent case involving Papa John’s Pizza, the U.S. District Court for the Eastern District … Continue reading this entry

Florida Judge Rejects Long Standing, Accepted Definition of Express Consent Under Telephone Consumer Protection Act

On May 8, 2013 Florida Judge Robert Scola, Jr. rejected the Federal Communications Commission longstanding definition of express consent. In Mais v. Gulf Coast Collection Bureau, plaintiff Mark Mais went to the emergency room at the Westside Regional Hospital in Broward County, Florida for treatment. His wife completed the admission paperwork and provided his cell … Continue reading this entry

What Constitutes "Express Consent" Under the Telephone Consumer Protection Act

The Seventh Circuit Court of Appeals may soon clarify what constitutes express consent under the Telephone Consumer Protection Act (TCPA). U.S. District Court Judge John J. Tharp, Jr. has certified an interlocutory appeal on the question of whether providing another with your cell phone amounts to consent to being “robocalled” on that number. In Melissa … Continue reading this entry