Posts in FCC.

In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit's opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter "ACA"], vacated the Federal Communications Commission's ("FCC") 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system ("ATDS").

The plaintiff, Wilfredo Gonzalez ("Plaintiff"), alleged that Ocwen Loan Servicing, LLC ("Ocwen") used an ATDS to place approximately 500 calls to his ...

On May 14, 2018, in the wake of the landmark decision ACA International v. FCC, 855 F.3d 687 (D.C. Cir. 2018), the Federal Communications Commission (FCC) issued a Public Notice seeking comment on a myriad of topics including:

  • What constitutes an Automatic Telephone Dialing System (ATDS) in light of the Court of Appeals' finding that the agency's "'capacious understanding of the device's 'capacity' lies considerably beyond the agency's zone of delegated authority"
  • What functions a devise must be able to perform to qualify as an ATDS. The Court of Appeals' noted the FCC has defined the ...
Tags: ATDS, fcc, tcpa

Coatney v. Synchrony Bank, No. 6:16-cv-389-Orl-22TBS (M.D. Fla. Aug. 2, 2011), Ricks v. Allied Interstate, LLC, No. 3:16-cv-00205-HES-PBD (M.D. Fla. July 11, 2016)

In two recently published cases, the U.S. District Court for the Middle District of Florida stayed proceedings pending the outcome of ACA International v. Federal Communications Commission, which challenges the FCC's July 10, 2015, Declaratory Ruling. The basis for both Motions to Stay was the fact that the ACA appeal bears directly on the what constitutes an Automatic Telephone Dialing System (ATDS). As the Court in ...

Posted in: FCC, Florida

On August 4, 2016, the FCC released a Declaratory Ruling confirming that schools and utilities making robo calls do not violate the TCPA under certain circumstances. The Ruling, addressed Petitions filed by Blackboard, Inc. and Edison Electric Institute and American Gas Association. Blackboard, Inc. requested that "all automated informational messages sent by an educational organization via a recipient's requested method of notification are calls made for an 'emergency purpose' and thus outside the requirements of the TCPA," including messages made for unexcused ...

Posted in: FCC

On June 10, 2016, the FCC Consumer Advisory Committee recommended promulgation of a Final Rule pursuant to the Bipartisan Budget Act of 2015, containing the following consumer protections:

  1. Calls pursuant to the exception would only be permitted to be made to the debtors themselves, not to family, friends or others, including employers;
  2. The rule would apply to texts as well as to calls to cell phones;
  3. Calls would be allowed only when related to delinquent or defaulted debt, and only related to the debt status, and no telemarketing messages would be permitted to be included;
  4. The number of ...
Posted in: FCC

Thirty-eight members of the Senate and House of Representatives wrote Federal Communications Commission Chairman Tom Wheeler, asking the FCC to limit application of Section 301, to "accomplish several important consumer protection objectives:"

  1. Issue an immediate pronouncement stating that no calls can be made pursuant to Section 301, until the FCC finalizes regulations required by the provision
  2. Create Regulations governing calls made pursuant to Section 301 that:

Limit permissible calls to those collecting defaulted debt

Limit calls to reassigned numbers

Limit the number ...

Posted in: ATDS, FCC

Roberts v. Paypal, Inc., No. 13-16304 (9th Cir. Oct. 20, 2015) Pending before the Court was the trial court's Order granting summary judgment in Defendant's favor concluding that Plaintiff provided "prior express consent" to receive text messages from Defendant by knowingly providing his phone number. The Court of Appeals rejected Plaintiff's argument that his consent was limited, stating "[u]nder the FCC's interpretation, Roberts expressly consented to text messages from PayPal when he provided PayPal his cell phone number. Even if Roberts believed that PayPal would only ...

Dominquez v. Yahoo, Inc., No. 14-1751 (3rd Cir. Oct. 23, 2015) Plaintiff bought a cell phone that came with a reassigned number. The previous owner of the number had subscribed to a Yahoo notification service, which sent text messages every time an email was sent to the previous owner's linked Yahoo account. Because the previous owner never canceled the service, Plaintiff received text messages every time the previous owner received an email totaling 27,809 text messages over a 17 month period. The trial court originally granted summary judgment in Yahoo's favor, concluding that the ...

The Telephone Consumer Protection Act defines the phrase Automatic Telephone Dialing System (ATDS) as equipment that has the capacity: (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. On November 19, 2013, the FCC issued a public notice seeking comment on a Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking filed by the Professional Association for Customer Engagement (PACE). The Petition seeks a Declaratory Ruling: 1. Clarifying that a dialing system is not an ATDS unless it has ...

The new FCC rule requiring prior express written consent for all: (1) Autodialed or prerecorded telemarketing calls to wireless numbers; and (2) Prerecorded telemarketing calls to residential lines takes effect today. The rule eliminates the "established business relationship" exemption for such calls to residential lines and requires that telemarketers now obtain a written agreement containing the signature of the called party, including a clear and conspicuous disclosure that: 1. The person allows the seller to make telemarketing calls using an automatic telephone ...

Posted in: FCC

In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Nov. 29, 2012) Pending before the Federal Communications Commission was a Petition to determine whether sending a single text using an Automatic Telephone Dialing System (ATDS) confirming receipt of a request that no further text messages be sent violated the TCPA. The FCC concluded that a text message falls within a recipient's prior express consent to receive text messages and does not ...

Posted in: FCC, Text Messages

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