Popular Topics
All Topics
- .Com Disclosure Guide
- 140conf
- 140conf Long Island
- 140confLI
- 47 USC 230
- AAA
- ACI 2017
- Ads
- Advance Registration
- Advertising
- Advertising Agencies
- Advertising Agency
- Advertising Disclosure
- Advertising Industry
- Advertising Injury
- Advertising Law
- Advertising Practice
- advertising self-regulation
- Advertising Self-Regulatory Council
- Advertising Software
- Advertising, Marketing & Promotions News
- Advertorials
- Advisory
- Affiliate Marketing
- Affiliate Program
- AG
- All Natural
- Amazon
- Amazon Silk
- Amazon Tax
- Amazon.com
- Amendments
- American Advertising Federation
- American Bar Association
- Americans with Disabilities Act
- Android
- Annual Audit
- Annual Fee
- anti-fraud
- App Developers
- Apple
- Apps
- Arbitration
- Arbitration Clause
- Arbitration Rules
- Ashley Madison
- ASRC
- AT&T Mobility LLC v. Concepcion
- ATDS
- Attorney
- Attorney General
- Audio Beacons
- Augme
- Auto-dial
- Automatic Renewal
- Automobiles
- BBB AdTruth
- Bead Art Playsets
- Behavioral Advertising
- Best Lawyers
- Blackberry
- Bloggers and Influencers
- Bloomberg BNA
- Brain Training
- Branding
- Brands
- Breach
- Burden of Proof
- Business Law
- Business, Marketing & Promotions News
- Buyers
- California
- California Auto-Renewal Task Force
- California Consumer Privacy Act
- California Department of Alcoholic Beverage Control
- California’s Automatic Renewal Law
- California’s Unfair Competition Law
- Campaigns
- CAN-Spam
- Cancer Fund of America
- cannabis
- Caribbean & Latin American Corporate Counsel Summit 2017
- CARU's Guidelines
- CAS
- Cash prizes
- CASL
- CBBB
- CBD
- Celebrity Images
- Cell Phone Applications
- Cell phones
- CFPB
- CGMP
- Chambers 2017 USA Guide
- Chantal Tode
- Charge Pop-ups
- Charity Fundraising
- Charity Regulators
- Children's Advertising
- Children's Advertising Review Unit (CARU)
- children's marketing
- Children's Privacy
- Civil Penalties
- Class Action
- Class Action Lawsuit
- Class Certification
- Clean Diesel
- Cognitive Claims
- Colorado
- Commerce Department
- Commercial Advertising
- Commercial Electronic Mail Act (CEMA)
- Communications Decency Act
- compliance
- conference
- Consumer Complaints
- Consumer Complaints List
- Consumer Contracts
- Consumer Data
- Consumer Data Protection Act (“CDPA”)
- Consumer Fraud
- consumer health guidelines
- Consumer Privacy
- Consumer Privacy Bill of Rights
- Consumer Protection
- consumer protection laws
- Consumer Sentinel Network
- Contract
- COPPA
- COPPA FTC Olshan Advertising Marketing Promotions Privacy
- Copyright Act
- Copyright Alert System
- Copyright Infringement
- Copyright Infringement Abroad
- Copyright, Trademark and Other Intellectual Property
- Corporate Law
- Council of Better Business Bureau
- Counterclaims
- Court Decisions
- COVID-19
- Cramming
- Credit Card Payment Surcharges
- Crowdfunding
- Cryptocurrency
- cybersecurity
- D.C. Circuit Court
- Daily Fantasy Sports Contests
- dark patterns
- data breach
- Data Broker
- Data Collection Practices
- Data Protection
- Data Security
- Data Transfers
- Debt collectors
- Deceptive Advertising
- Deceptive Pricing
- Deceptive Tracking
- Department of Commerce
- Department of Labor
- Department of Labor (DOL)
- dietary supplements
- Digital
- Digital Advertising
- Digital Media
- Direct listings
- Direct Marketers
- Direct marketing programs
- Direct response marketing
- DirectTV
- Disclosure
- Disclosure Obligations
- Disclosure Rules
- Discounts
- DMA
- DMCA
- Do Not Call
- Do Not Track
- DOJ
- Domain Extensions
- Domino's Pizza
- Dot Com Disclosures
- DPPA
- DraftKings
- Drawing By Chance
- Elder Abuse Prevention and Prosecution Act
- Emissions Testing
- endorsement
- Enforcement Action
- Enhanced Ads
- Entry Fee
- EPA
- Epic
- Ethics
- EU Commission
- EU-US Privacy Shield
- European Commission
- European Court of Justice (ECJ)
- European Union
- European Union registration holders
- European Union Trademark
- Exchange listing
- Ezor
- Factory outlets
- Fair Credit Reporting Act (FCRA)
- Fair Debt Collections Practices Act
- Fair Information Practice Principles
- Fair Labor Standards Act
- false advertisement
- False Advertising
- FanDuel
- Fantasy Contests Act
- Fantasy Sports
- Fantasy Sports Operators
- Farm Bill
- fashion law
- Fax broadcsters
- Faxes
- FCC
- FCC Developments
- FCC Solicited Fax Rule
- FDA
- FDCA
- Federal Laws & Regulations
- Federal Overtime Regulations
- Federal Trade Commission
- Final Rule
- FIPP
- First Amendment
- Fit Products
- Fit Tea
- Florida
- Force Majeure
- Fraud
- FTC
- FTC Act
- FTC Chair
- FTC Guidance
- FTC restitution
- FTC’s Jewelry Guides
- Gambling
- Gambling Laws
- Game Promotions
- GDPR
- General Data Protection Regulation
- Geo-targeted Advertising
- Georgia
- Guide
- HARO
- Health-related Mobile Apps
- Health-related Products
- Healthy
- HIPAA
- History Sniffing
- HitPath
- Homestead Laws
- HTC
- Hurricane
- IAB
- ICANN
- illegal content
- Illegal Gambling
- Illinois
- IMDb
- Influencer Marketing
- Injury in Fact
- Insider Trading
- Inspection Resources
- Insurance Company
- Insurance Coverage
- INTA
- Intellectual Property
- Internet and Privacy Law
- iOS
- Iowa
- IP Awareness Assessment Tool
- IPOs
- Jeff Pulver
- Jewelry
- JOLT
- Jurisdiction
- Kindle Fire
- Lanham Act
- Law
- Law Enforcement
- Law Review Article
- law school
- Laws
- Leading Lawyers
- Lee Bogner
- Legal 500 United States 2017
- Legislation
- letter of consent
- Licensing Fees
- Lily Robotics
- List managers
- Litigation
- Lumosity
- Lumosity ads
- Lumosity games
- Lustigman Firm
- Luxury Daily
- made in the usa
- Magazine publishers
- Mail Order Sales Rule
- Manufacture
- Manufacturer’s Suggested Retail Price (“MSRP”)
- Marden-Kane
- Marketing
- Marketing & Promotions News
- Marketing and Advertising Law
- Marketshare
- Mass texts
- Material Disclosures
- Mc Donalds
- Media and Entertainment
- Media Companies
- Microsoft
- MLM
- Mobile Financial Services
- Mobile In-app Charges
- Mobile Marketer
- Mobile Marketing
- Mobile Payment Systems
- Mobile Payment Systems Security Programs
- Mortgage Bankers Association
- Mortgage Investors
- NAD
- NARB
- Native Advertising
- Native Advertising Guidelines
- Nautilus, Inc.
- Network Advertising Initiative
- New Jersey
- New Jersey Supreme Court
- New York
- New York Law Journal
- New York SHIELD Act
- New York’s Automatic Renewal Law
- Nomi
- Non-commerical Calls
- Non-profit Organization
- Notice
- Nutrient Content
- NY Attorney General
- objective consumer harm
- Off-label Prescriptions
- Office for Civil Rights (OCR)
- Office of Foreign Assets Control (OFAC)
- Office of National Coordinator for Health Information Technology (ONC)
- Ohio
- Oklahoma
- Olshan
- Olshan Grundman
- Olshan News
- Online Advertising
- Online Apps
- Online Cancellation
- Online Contracts
- Online Discount Pricing
- Online Entertainment Co
- Online Retail
- Online Reviews
- Online Tracking
- Online travel agencies
- Overstock
- Paid Promotions
- pandemic
- Patents
- Payment Methods
- Penny Auction
- Performance Marketing
- Personally Identifiable Information
- Pet Care
- Peter Shankman
- Pharmaceutical Advertising
- Pharmaceutical Manufacturers
- pre-orders
- Pre-recorded Message
- Price Match Guarantee
- Pricing Guides
- Pricing Practices
- Privacy
- Privacy Act
- Privacy Policy
- Privacy Practices
- Privacy Shield
- Pro-Consumer
- Products
- Professional Association for Customer Engagement (PACE)
- Promotion
- Proposed Rulemaking
- Public Database
- Publication of Age
- Publisher Magazine
- Q&A
- RCT Requirements
- Real Estate
- Real-estate-advertising
- Reasonableness
- Registration
- Regulations
- Resale Value
- Resignation
- Restrictions
- retail
- Retail Stores
- Revisions
- Risk
- Robocalls
- Roundtable
- Safe Harbor
- Sales
- Sales Practices
- Sales Tax
- Sandy
- SDNY
- SEC
- SEC disclosure
- SEC disgorgement
- SEC Form 10
- Section 17600 of the Business and Professions Code
- Securities Act of 1933
- Securities Act Section 17(b)
- Securities Exchange Act of 1934
- self-regulatory
- Sellers
- Service-Mark Infringement
- Settlement
- Sex Offenders
- SilverPush Apps
- Skill Contest
- Skin Care Products
- Smartphone
- Social Media
- Social Media Accounts
- Social Media Marketing
- Social Media Posts
- Social Networking
- South Dakota
- Southern District of Florida
- Spam
- Special Olympics
- Spotify
- Staff Reshuffling
- State Law
- Statute of Limitations
- Subscribers' privacy rights
- Subscription Arrangements
- substantiation rules
- Super Lawyers
- Supreme Court
- Sweeping
- Sweepstakes Law
- Sweeptstakes Contest
- symposium
- Tasty
- TCCWNA
- TCPA
- TCPA Appeals
- TCPA Claim
- TCPA Class Actions
- TCPA Lawsuit
- TCPA Liability
- TCPA Regulation
- TCPA Ruling
- Tech Companies
- Tech Day New York 2017
- Telecom Law
- Telemarketers
- Telemarketing
- Telemarketing Calls
- Telemarketing Law
- Telemarketing Sales Rule (TSR)
- Telephone Consumer Act
- Terms & Conditions
- Text Message Ads
- Text Messages
- Text Messengers
- Textile Fiber Products Identification Act
- The 2017 ANA/BAA 39th Marketing Law Conference: Breakthrough: Legal Strategies for Dynamic Businesses
- The Americans with Disabilities Act
- The Electronic Retailing Self-Regulation Program
- The Kardashians
- The Pennsylvania Record
- Third Circuit Court
- Throttling
- Top Ten Complaints
- Trademark Clearinghouse
- Trademark Protection
- Trademark Rights
- Trademarks
- Transactions
- Transnational Criminal Organization (TCO
- Truth-in-Consumer Contract, Warranty & Notice Act
- U.S. Patent and Trademark Office
- Unauthorized Data
- United Kingdom
- Unsolicited Advertisement
- Unsubscribe Act of 2019
- US Supreme Court
- Use Tax
- Velti
- Vermont
- Vermont House Bill 593
- Vicarious Liability
- Violations
- virtual reality
- Wal-Mart v. Dukes
- Warning Letter
- Washington D.C.
- Washington Law
- Washington’s Consumer Protection Act
- WBO
- Web Agreements
- Web Browsers
- webinar
- webOS
- Websites
- Western District of Washington
- White House
- World Boxing Organization
- World Trademark Review
Recent Posts
- New Jersey State Court Successfully Dismisses Consumer Fraud Act Class Action Suit on Behalf of Olshan Client
- IP Talk Blog Features Mary Grieco on CJEU Privacy Shield Invalidation
- FCC Issues $225 Million Fine to Robocallers
- Record-Breaking Settlement Reached In Dietary Supplement Suit Regarding Pain Claims
- Virginia Poised to Become Second State to Pass Comprehensive Consumer Privacy Legislation
- FTC Announces “Dark Patterns” Virtual Workshop
- Engaging Experts Podcast Interviews Andrew Lustigman on False Advertising Disputes
- Customer Reviews Matter
- NAD Reviews Portable UV-C Light Product Advertised on TV (Case #6426, 12/10/20)
Archives
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
Contact Us
212.451.2258
Supreme Court Scales Back TCPA
Ruling opens the door for increased use of autodialed calls
April 1, 2021 will go down as a big day in the history of the Telephone Consumer Protection Act (“TCPA”), as the Supreme Court unanimously and drastically scaled back the definition of the term “automatic telephone dialing system” (“ATDS”). As a result, businesses are now permitted to use so-called robocalling technology to reach out to customers and potential customers alike by autodialer or text so long as the technology does not randomly or sequentially generate the phone numbers. In other words, thanks to the ruling in Facebook v. Duguid, get ready for an exponential increase in the number of autodialed calls and texts made in the United States.
The TCPA, codified at 47 U. S. C. §227, defines an ATDS as equipment that possesses the capacity to store or produce telephone numbers to be called, (a) using a random or sequential number generator and (b) to dial those numbers.
That definition was written thirty years ago, and technology has changed drastically during that time. Telemarketers are now perfectly capable of blanketing the country with robocalls many times over without having to generate numbers randomly or sequentially. However, courts responded to the proliferation of robocalls by stretching the statutory definition of an ATDS to cover an increasingly broad range of dialing activity, and plaintiffs’ attorneys have been able to exploit the judicial effort to keep the TCPA as a meaningful check on telemarketing activities. That trend ended with this latest ruling.
Plaintiff Noah Duguid brought a TCPA lawsuit against Facebook when the social media giant sent him numerous automatic text messages without his consent. The TCPA treats text messages the same as automated telephone calls, but in order for the TCPA and its $500 per-illegal-call penalty to apply in this situation, the texts must have been sent from an ATDS.
Like virtually anyone using ATDS technology today, Facebook did not randomly or sequentially send out the text messages in question. Rather, it sent targeted texts to numbers linked to specific accounts.
The district court originally dismissed Duguid’s lawsuit. But on appeal, the Ninth Circuit used a court-derived definition of ATDS rather than the statutory one, and reversed the district court, holding that Duguid had indeed stated a claim against Facebook for violating the TCPA.
Facebook, however, appealed to the Supreme Court and prevailed in the April 1st ruling, convincing all nine justices that the definition of an ATDS should be interpreted exactly as written by Congress.
The question before the Supreme Court was whether the definition of an ATDS encompasses equipment that can store and dial telephone numbers, even if the device does not use a random or sequential number generator. All nine justices agreed succinctly that, “It does not.” More specifically, the Supreme Court adopted a strict interpretation of the TCPA: “In sum, Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator. This definition excludes equipment like Facebook’s […] which does not use such technology.”
While this ruling will undoubtedly embolden more aggressive calling policies, those considering increasing use of ATDS dialing would be wise to remember that the TCPA still forbids the use of prerecorded or artificial voice calls unless there is prior express written consent from the recipient.
TAKEAWAY: The dialing of stored numbers no longer requires prior express written consent so long as the numbers were not generated randomly or sequentially. Although caution should be exercised because there are other provisions of the TCPA that were unaffected, the Supreme Court’s ruling opens the door for businesses to use dialing technology to call or text numbers it has collected through other methods.