Emerging Issues in FCC: Legal Issues in TCPA Declaratory Rulings on Faxes
Over the past several decades, Congress has spoken twice regarding the regulation of faxes: the Telephone Consumer Protection Act of 1991 (TCPA), and the Junk Fax Prevention Act of 2005 (JFPA). The Federal Communications Commission (FCC) is responsible for implementing those laws, and has done so by enacting extensive regulations and issuing numerous Declaratory Rulings and Orders. Those Declaratory Rulings and Orders provide gloss on the TCPA and JFPA found nowhere else and create compliance traps for the unwary. With the threat of $500-$1500 in statutory damages per violation (i.e., per fax), the costs of non-compliance can be staggering.
Panelists will discuss the fundamentals of the TCPA and JFPA, the FCC’s interpretations of those laws through its regulations and orders, and recent challenges (both before the FCC and in federal court) to those interpretations. These thought leaders also will present their perspectives on how best to comply with the FCC’s regulations to help minimize the risk of liability.
Key topics will include:
- An overview of the TCPA and JFPA
- Key compliance points: Is the fax “unsolicited” and is it an “advertisement”?
- The FCC’s opt-out notice regulations, rulings, and pending appeals
- The FCC’s “Westfax” Declaratory Ruling extending the TCPA to efaxes
- Best practices to minimize the risk of a lawsuit
- Strategies for litigating after suit has been filed
Drinker Biddle & Reath LLP
Drinker Biddle & Reath LLP
- What does the TCPA say about faxes and liability for violation?
- How has the FCC implemented its fax rules and modified them over the years?
- What was the reason the FCC did what it did in issuing its declaratory ruling?
- What has happened since the ruling and what are the arguments both on appeal and in pending petitions for reconsideration or review of the Declaratory Ruling and in general for individual waivers for retroactive relief?
- Are there best practices for faxing?
- Discuss some of the class action litigation issues common to fax and phone TCPA cases
Pepper Hamilton LLP
- The August 28, 2015 FCC declaratory ruling, In the Matter of Westfax, Inc. makes clear that “e-faxes” that are submitted via a conventional fax machine fall under the scope of the TCPA and that all statutory requirements and regulations apply to such faxes.
- The declaratory ruling left remaining questions regarding potential liability for fax broadcasting services.
- The FCC declined to offer an example of TCPA-compliant “opt-out” language.
Shook, Hardy & Bacon L.L.P
Once you have an efax in TCPA litigation, what are some ways to defeat the claim/class or to push it outside of the reach of the TCPA.
- Is the efax an advertisement?
- Does it matter whether the efax is unsolicited/solicited for your lawsuit?
- Is there an advantage to seeking waiver from the FCC?
Who Should Attend:
- Telecommunication Attorneys
- Attorneys General
- Senior Technical Advisors
- Chief Information Officers
- Litigation Officers
- Legal Counsel
- Risks and Compliance Officers
- Marketing and Advertising Professionals
- Marketing and Advertising Companies
- Top Level Management
- Other related/interested Professionals and Organizations
Laura Phillips is a partner in and chair of Drinker Biddle & Reath LLP’s Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team. Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including the development of spectrum auction policies and strategies, network interconnection, access, universal service, Voice over Internet Protocol and regulatory matters stemming from communications service convergence, the growth of wireless services and the Internet. Many clients have questions about FCC rules, policies and enforcement issues, and Laura is active in assisting clients with litigation and regulatory strategies in the interpretation of the Telephone Consumer Protection Act, among other laws and policies. Laura also counsels clients on a range of government compliance issues, including licensing, regulatory billing and other business issues. Laura is a Past President of the Federal Communications Bar Association (2012-2013).
Laura Phillips is a partner in and chair of Drinker Biddle & Reath LLP’s Government & Regulatory Affairs Practice Group …
Justin Kay is a partner with Drinker Biddle & Reath LLP and a member of its Litigation Group, Class Actions Team, and TCPA Team. Justin’s practice focuses primarily on defending individuals and corporations in federal and state court and before federal agencies in actions asserting violations of various state and federal consumer protection and corporate governance statutes. He has substantial experience representing defendants in putative class actions brought under the TCPA, counsels clients on compliance measures, and represents clients in actions pending before the Federal Communications Commission.
Justin Kay is a partner with Drinker Biddle & Reath LLP and a member of its Litigation Group, Class Actions …
Philip (PJ) Hoffman is an associate in the Financial Services Practice Group, resident in the Washington D.C. office of Pepper Hamilton LLP. He is a member of the Financial Services Practice Group, which involves practices in the areas of consumer financial services and state and federal regulatory issues.
In his practice, Mr. Hoffman counsels bank and nonbank clients on consumer financial laws and compliance with CFPB, FTC, and FCC regulations. He also advises FinTech companies and marketplace lenders on compliance and state licensing matters related to consumer financial services. Mr. Hoffman also works with clients regarding AML/BSA issues. His practice includes assisting companies to craft policies and ensure compliance with TCPA and TSR. Mr. Hoffman also works with credit unions on regulatory compliance and issue advocacy at the NCUA.
Prior to joining Pepper, he served as regulatory affairs counsel for the National Association of Federal Credit Unions where he advocated on behalf of federal credit unions to entities including the Federal Reserve Board, National Credit Union Administration, Consumer Financial Protection Bureau, Internal Revenue Service, Federal Trade Commission, Department of Labor, Department of Treasury and The White House. Additionally, Mr. Hoffman has nearly a decade of experience in the political campaign world as a political fundraiser and strategist for U.S. Senators Tom Daschle, Bill Nelson and Joe Donnelly.
Philip (PJ) Hoffman is an associate in the Financial Services Practice Group, resident in the Washington D.C. office of Pepper …
Melissa's practice focuses on the defense of complex individual and class action litigation. She has successfully defended clients across the United States in cases involving products liability and in claims arising under federal and state consumer protection statutes, including fax-related claims under the TCPA.
Melissa's practice focuses on the defense of complex individual and class action litigation. She has successfully defended clients across the …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
Specialized Knowledge and Applications
NY Category of CLE Credit:
Areas of Professional Practice
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About Drinker Biddle & Reath LLP
With 620 lawyers in 12 offices, Drinker Biddle & Reath LLP provides clients with unparalleled legal service in matters ranging from complex class actions to multibillion-dollar deals, across a broad spectrum of industries. We strive not only to assist clients in negotiating complex transactions and resolving high-stakes disputes, but also in anticipating future challenges and opportunities. By combining sound judgment with creative thinking, we help clients achieve their present-day goals and position themselves strategically for future success.
Our TCPA Team is comprised of experienced litigators and regulatory attorneys who defend individual and putative class actions across the country and counsel leading companies on how to adapt their practices in light of the evolving regulatory landscape. Our TCPA Blog is the defense bar’s preeminent public resource analyzing TCPA-related litigation and regulatory developments. For breaking news about the TCPA, follow us at www.tcpablog.com.
About Pepper Hamilton LLP
Pepper Hamilton LLP is a multi-practice law firm with more than 500 lawyers nationally. The firm provides corporate, litigation and regulatory legal services to leading businesses, governmental entities, nonprofit organizations and individuals throughout the nation and the world.
Our firm has grown from a two-person law office formed in 1890 in Philadelphia to a large, sophisticated law firm with a national and international practice.
Pepper Hamilton LLP’s Financial Services Practice Group includes more than 45 lawyers and other professionals who focus their practices on issues affecting the financial services industry. The financial services industry is changing rapidly. The expansion of financial institutions into new areas – securities, mutual funds, hedge funds and insurance – requires a group that has the breadth and depth to handle all these needs, needs met by the lawyers in Pepper’s Financial Services group.
About Shook, Hardy & Bacon L.L.P
Shook, Hardy & Bacon is recognized as a premier national and international law firm, servicing clients across all industries in product liability, data privacy and security, intellectual property, litigation, business disputes, employment, and international matters. Founded in 1889, the firm has grown to nearly 500 attorneys supported by 100+ scientific and other research analysts. Shook is headquartered in Kansas City, Missouri and has 11 other offices in the United States and Europe. Shook’s Data Security and Privacy practice boasts lawyers with an array of expertise and offers a full menu of compliance, crisis management, and representation options. Because of Shook’s depth in this area and strong reputation as a litigation powerhouse, the firm is well-positioned to successfully defend companies against claims involving alleged violations of the Telephone Consumer Protection Act (TCPA) in both class action and individual lawsuits.