Every year I do a piece on scary TCPA stories for Halloween. This year I figured I’d start a new tradition and identify the top TCPA stories we should all be thankful for ahead of Thanksgiving this year.
While there is a lot to be fearful of in TCPAWorld, there were also a cornucopia of very positive developments that we should take stock of as we carve our birds and dive into casseroles. Without further adieu, here are the Top 10 TCPA Stories of 2019 to be grateful for this Thanksgiving:
10. Some Courts Are Pushing Back on Platform Provider Liability: One of the scariest recent developments in TCPAWorld is the tendency of courts to consider whether a mere conduit of calls might be individually liable for calls made using their system. But a handful of courts have pushed back on that doctrine and suggested that merely offering a calling service or platform is not, in and of itself, sufficientto trigger direct liability for calls made using that system. Others were not so lucky, however.
9. Some Courts Are Also Pushing Back on Direct Officer Liability: I have opined many times the rule allowing officers or directors to be held directly liable for TCPA violations by their company is a terrible one–and a recent court ruling holding a CEO might face personal liability for trying to help the company comply with the TCPA is just a disaster. Nonetheless a number of courts in 2019 have questioned whether this is really the right path and we can expect to see these positive developments continue.
8. The Use Of Self-Identifying Affidavits in Connection With Ascertaining TCPA Class Members Is Under Attack: Few things were stranger this year than the Defendant that recently won a certified TCPA class action at trial only to see the Court fashion a post-trial claims process that yet allowed class members to recover damages by declaring membership in a class. Nonetheless, the prevailing winds are now favorable to Defendants as courts are increasingly unlikely to permit a class to be ascertained using self-identifying affidavits owing to the high propensity for fraud and the Defendant’s constitutional right to challenge the representations made by these purported class members.
7. The TRACED and Stopping Bad Robocalls Acts Could Have Been Worse– Much Worse: One of the biggest TCPA stories of 2019 was Congress passing two “robocall” bills– one in the House and one in the Senate. While these bills still represent a dangerous exhalation of the TCPA–a vague statute that impinges free speech and has no impact on robocalls– the original versions of the bills were way scarier than the version that finally passed each chamber. For instance, the Stopping Bad Robocalls Act originally would have expanded the definition of an ATDS to specifically include all dialers that call from a list. Perhaps even scarier, the original Senate TRACED bill included criminal penalties for TCPA violators–meaning that folks found to have intentionally violated the TCPA might end up behind bars. Yikes!Luckily these provisions were dropped from the bills and the current legislation–which now looks likely to pass both chambers–will not include these provisions.
6. Courts Are Permitting Fraud Claims Against Manufacturers of TCPA Lawsuits: This is a great one, weird that it is only the sixth best TCPA story of the year so far. Two courts have recently permitted fraud claims to proceed against TCPA plaintiffs that had manufactured a lawsuit to some degree–one involving a plaintiff that (allegedly) intentionally allowed the Defendant to continue texting him despite full awareness of the availability of a “stop” functionality merely to set up a suit— and one against a consumer that (allegedly) specifically invited over a thousand texts merely to set up a TCPA suit. It remains to be seen where these cases end up, but judicial tolerance of fraud claims in this setting is a first crucial step toward shutting down the scam Plaintiffs.
5. TCPA Filings Are Down in 2019!– Probably: According to our friends at WebRecon.com, TCPA filings are down a whopping 16% from last year. Wow! And that follows a 12% decline from the following year. Nonetheless, TCPA class actions continue to make up a huge percentage of those filings– upward of 40%. Plus a huge number of these cases are now being pursued in in arbitration, so there is a true “shadow” population of TCPA suits that cannot be tracked. Still, it is great to see that a downward trend might be upon us.
4. The TCPA Was Finally Found to be Unconstitutional– Sort of: I have been on this issue for years. Way back in 2016I opined that the TCPA was flat unconstitutional following the FCC’s expansive Omnibus ruling. I have written on it several times since–specifically challenging the watered-down version of strict scrutiny that courts were applying to the TCPA. Fortunately two Circuit Court of Appeals have now identified that the TCPA is, indeed, constitutionally infirm. Remarkably, however, these courts have elected to sever a content-specific exemption–thereby expanding the reach of the TCPA’s restriction on speech–rather than striking down the statute as unconstitutional. What a terrible decision. Luckily Facebook is now pursuing an appeal to the US Supreme Court on the issue. The outcome of this fight may truly shape our free speech rights for generations.
3. The 2003 and 2008 Predictive Dialer Rulings Are Officially Dead: This one feels good. For months following ACA Int’l courts struggled with the impact of the ruling on the FCC’s predictive dialer rulings from 2003 and 2008. While some courts immediately deemed those rulings to have been set aside in their entirety by the D.C. Circuit Court of Appeal, the majority of early decisions actually went the other way. After the Ninth Circuit in Marks swiftly dismissed the possibility that the FCC’s earlier rulings survived ACA Int’l however, the vast majority of courts departed from reliance on those earlier rulings. Indeed, the last time a Court followed the 2003 and 2008 orders was March of this year– and at least one district court has reversed a magistrate judge’s determination that the 2003 and 2008 rulings are binding in the meantime.
2. We Now Have a Clear Majority Position As to ATDS Functionalities– Random and Sequential Number Generation is Required: Continuing the positive ATDS ruling theme, we now have a clear majority position in TCPAWorld–a device is not an ATDS unless it has the capacity to dial randomly or sequentially.That’s huge news! Nonetheless caution is urged because: i) major appellate court decisions on the topic are being awaited; ii) the vagueness of the terms “system” and “capacity” might yet lead to a finding that manually placed calls were made using an ATDS; and iii) some few courts continue to follow Marks.
1. TCPAWorld.com Launches and Quickly Becomes TCPA Sensation: While those other stories are big, obviously the TCPA development that you should be most thankful for this year is the launch of TCPAWorld.com. With immediate coverage of key TCPA developments, an awesome podcast, a comprehensive and up-to-date ATDS review and other neat TCPA features, it is little wonder TCPAWorld.com has quickly become the web’s go-to source for TCPA-related news and views. Can you believe we’re already pushing 100,000 hits in just a few short months of existence? Obviously we here at TCPAWorld.com are humbled by all the support and never forget what we are most grateful for– you our gentle readers and avid fans.
Happy Thanksgiving everyone!