TCPA in the 2017 Landscape: Looking Ahead
Class action ﬁlings under the Telephone Consumer Protection Act (TCPA) continued to be one of the most filed lawsuits in the United States in fiscal year 2016. However, due to the big number of suits filed, several cases were left unsettled, and companies that do business through phone and text remain affected. Fiscal year 2017 promises yet another action-packed landscape for the TCPA. The unsettled lawsuits last year are expected to be ruled upon this year and people are anticipating significant impacts of the new administration to these rulings.
Our panel of key thought leaders and practitioners brought together by The Knowledge Group will offer a discussion of the fundamentals as well as updates regarding the latest and significant issues surrounding Telephone Consumer Protection Act. This LIVE Webcast aims to help the audience avoid common pitfalls and risk issues when it comes to TCPA compliance. Speakers will also offer significant outlook of the 2017 TCPA landscape and a comprehensive analysis of the rulings on cases brought under the act.
Key issues that will be covered in this course are:
- 2016 TCPA Highlights
- Up-to-the-minute TCPA Updates
- TCPA in the 2017 Landscape
- Top TCPA Class Action Lawsuits to Look for
- New Administration's Impact on TCPA
- Ensuring TCPA Compliance
Sarah Jacobson, Attorney
Haynes and Boone, LLP
- Impact of the new administration: Ajit Pai is the new chairman of the FCC, which has created a 2-1 majority in favor of Republicans. Will this result in a shift to more business-friendly rules? See Commissioner Pai’s dissent to the FCC’s July 2015 Omnibus TCPA order.
- Congressional Action: Congress created in 2015 an exception from TCPA liability for federally insured student loans, and in 2016 the communications and technology committee of the House Energy and Commerce Committee held a hearing on potential TCPA modifications. Will Congress take action to reflect changing technology in 2017 and the proliferation of TCPA litigation?
- ACA International: Oral argument was held before the DC Circuit in October 2016 in the ACA International case. That decision remains pending. Many questions at oral argument suggested that the bench is skeptical of the FCC’s interpretation of the TCPA, especially the FCC’s definition of “autodialer” under the statute.
Petrina Hall McDaniel, Partner
- Stemming the Tide for Fax Violations under the TCPA? The recent decision of Yaakov v. FCC dealt a blow to the FCC’s rulemaking authority. The D.C. Circuit ruled in favor of industry finding that the FCC exceeded it rulemaking authority regarding solicited faxes. The court found that the plain terms of the TCPA drew a line between unsolicited faxes and solicited faxes and concluded that the TCPA regulates only unsolicited faxes, and thus no opt-out language is needed on solicited faxes. This ruling provides some comfort to the defense bar, where companies have been on the hook for millions of dollars in statutory damages for sending solicited faxes because of a technicality. Is the D.C. Circuit signaling that it will continue to push back on overreaching by the FCC? All eyes will remain fixed on this Court for the highly-anticipated decision in ACA International.
- Developing Trends under the TCPA: The TCPA seemingly appears to encompass a narrow subset of activity – calls to cell phones and landlines, text messages made to cell phones, and faxes. Recent trends suggest, however, that determining whether TCPA applies to activity outside of these categories may be unclear. Examples include ringless robocalls that go directly to voicemails and calls placed to Voice over Internet Protocol (VOIP) phone numbers. These issues may make TCPA liability less clear, with the FCC and courts beginning to weigh in.
- TCPA Compliance Pointers: Understanding how to navigate FCC regulations and developing case law is therefore critical to avoiding litigation and ensuring compliance under the statute. Here are some tips: (1) ensure that the business is capturing the appropriate consent required for the type of call or text message it delivers (i.e., oral or written consent for nontelemarketing calls and ‘‘prior express written consent’’ for telemarketing calls); (2) understand the elements of ‘‘prior express written consent’’ for telemarketing calls and text messages (FCC regulations require a prior, signed, written agreement that is ‘‘clear and conspicuous’’ in which the consumer specifically agrees to receive telemarketing calls or text messages via autodialer and/or prerecorded voice on a cellphone or residential line and such consent may not be a condition of purchase); (3) confirm the accuracy of numbers in the database and verify that numbers have not been reassigned (while no national registry exists of reassigned numbers, consider using market solutions that can assist in scrubbing numbers and identifying current subscribers); (4) good recordkeeping is key (the burden is on the caller to retain evidence of revocation of consent and the company should maintain records for at least four years); and (5) perform independent and annual assessments of vendors that provide TCPA services (negotiate indemnification and joint and several liability if possible).
Andrew S. Jick, Attorney
Akin Gump Strauss Hauer & Feld LLP
- Strategies for opposing and defeating class certification in TCPA cases – including, for example:
- Existence of individualized issues
- Superiority / proportionality of damages
- Challenging plaintiffs’ Article III standing in TCPA cases post-Spokeo
- Mooting plaintiffs’ claims through settlement offers post-Gomez v. Campbell-Ewald
Who Should Attend:
- Class Action Attorneys
- TCPA Compliant Companies
- In-house Counsel
- Media and Telecommunication Attorneys
- Compliance and Ethics Managers
- Telemarketing Companies
- Other Interested and Related Professionals and Companies
Petrina McDaniel is a partner in Dentons’ Litigation and Dispute Resolution practice and member of the Firm’s US Privacy and Data Security team. Petrina is a commercial litigator and Certified Information Privacy Professional (CIPP/US) whose practice uniquely blends complex litigation, regulatory compliance, and privacy counseling. Petrina represents domestic and multinational companies in complex commercial cases in state and federal courts across the country, including appellate courts. She routinely litigates diverse litigation matters, including consumer class actions, contracts, business torts, trade secrets and consumer disputes, among others, with a particular emphasis on privacy and data security.
Petrina has developed a niche for counseling clients on a myriad of consumer privacy issues. She has extensive experience under numerous federal privacy laws, including the Telephone Consumer Protection Act (TCPA), the Computer Fraud and Abuse Act (CFAA), the Fair Credit Reporting Act (FCRA), the Fair Debt Collection Practices Act (FDCPA), the Children’s Online Privacy Protection Act (COPPA), the CAN-SPAM Act, the Family Educational Rights and Privacy Act (FERPA), and other state and federal privacy statutes.
Petrina McDaniel is a partner in Dentons’ Litigation and Dispute Resolution practice and member of the Firm’s US Privacy and …
Andrew Jick concentrates his practice on complex commercial litigation, with an emphasis on consumer class action defense, securities fraud class action defense and intellectual property matters. Mr. Jick has extensive experience defending class action lawsuits involving claims for false advertising, unfair business practices and violations of federal securities laws. He also has substantial experience litigating copyright, trademark and right of publicity cases.
Andrew Jick concentrates his practice on complex commercial litigation, with an emphasis on consumer class action defense, securities fraud class …
Allan Gustin is an associate in the Business Litigation Practice Group in the Orange County office of Haynes and Boone. He maintains a diversified practice that includes commercial litigation, employment litigation, and appellate matters. He has represented clients in a variety of matters, including bid protests, contract disputes, discrimination, harassment, wrongful termination, and Telephone Consumer Protection Act (TCPA) disputes.
Allan is committed to giving back to the community through his pro bono work. He recently submitted a U visa application to the United States Citizenship and Immigration Services (USCIS) on behalf of a domestic violence victim and her children. He also briefed an appeal to the Army Board for the Correction of Military Records (ABCMR) seeking a discharge upgrade on behalf of an Army veteran. Allan volunteers at the local Federal Pro Se Clinic where he offers guidance to underprivileged individuals in their litigation pursuits.
Allan Gustin is an associate in the Business Litigation Practice Group in the Orange County office of Haynes and Boone. …
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Method of Presentation:
Experience in consumer law
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
Areas of Professional Practice
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