A ‘Silver Linings Playbook’ for Defending TCPA Class Actions

Defendants in class actions arising under the Telephone Consumer Protection Act (‘‘TCPA’’) can find silver linings in the FCC’s July 2015 Declaratory Ruling and Order (‘‘FCC Ruling’’). 

Despite that plaintiffs’ lawyers have argued that the FCC Ruling strengthened consumer protections by, among other things, placing constraints on calls made to reassigned numbers, TCPA defendants can in certain circumstances use the FCC Ruling to their advantage.

The FCC Ruling laid out important protections for defendants by (1) affirming that the FCC did not change the statutory definition of ‘‘automatic telephone dialing system’’ (‘‘ATDS’’) in the TCPA; (2)  leaving it to courts to determine whether a platform operates ‘‘without human intervention’’ and therefore meets the FCC’s alternative formulation of an ATDS; and (3) validating that consent can be obtained through an intermediary and can also be revoked, which potentially make it more difficult for plaintiffs to obtain class certification where consent is at issue.

The TCPA was enacted in 1991 to curtail, among other things, abusive telemarketing practices where unsolicited calls were made in bulk to random or sequential telephone numbers. These calls had become a private and public nuisance, because telemarketers increasingly made calls during the ‘‘dinner hour’’ of most families, and used systems that dialed sequential blocks of telephone numbers that included those of emergency and public service organizations, whose phone lines were then occupied by autodialed calls.

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