TCPA Future Uncertain After A Tumultuous 2020

Scott Shaffer

Law360 has published an article authored by advertising partner Scott Shaffer entitled “TCPA Future Uncertain After A Tumultuous 2020.” In the article, Mr. Shaffer discusses the legal developments that occurred during last year regarding the Telephone Consumer Protection Act (TCPA) and what to expect in 2021. Last December, a Supreme Court hearing took place in the Facebook v. Duguid case that would determine whether decades of judicial expansion of the TCPA would continue or end. The case is currently focusing on the definition of an automatic telephone dialing system (ATDS) and if the text messages sent to the plaintiff without his consent were from an ADTS or not. Mr. Shaffer commented, “In order for the TCPA and its $500 per-illegal-call penalty to apply.” He continued to explain why this wouldn’t be as straightforward of a case as it seems, “The issue is not as simple as it sounds. While Facebook sends out text messages in a manner that most people would agree is automatic, the case will turn on definition of the term ATDS, which was written when the TCPA became law in 1991. The TCPA provides that an ATDS consists of ‘equipment which has the capacity to: (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers’.” Although the justices discussed the possibility of broadening the definition of what would be considered an ATDS both the U.S. Department of Justice and the outcome of a former case led to them keeping the definition as is, which Mr. Shaffer highlighted, “First, the U.S. Department of Justice intervened in the case, taking Facebook's side by submitting an amicus brief that largely supported Facebook's position. Second, the outcome might have been foretold by an unrelated but influential case that was decided by the U.S. Court of Appeals for the Seventh Circuit earlier last year, Gadelhak v. AT&T Services Inc.” This case followed Barr v. American Association of political Consultants Inc. which challenged a separate part of the TCPA. The article continues to delve into the history of the TCPA and how it could have been invalidated due to previous cases and their rulings regarding ATDA and robocalls. Earlier on in 2019, Donald Trump had signed the Telephone robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) which “gave the Federal Communications Commission (FCC) increased enforcement powers over unsolicited telemarketing calls. Among the provisions of the TRACED Act are civil penalties of up to $10,000 per call and an extension of the statute of limitations to four years.” This led to the FCC seeking $225 million from those allegedly responsible for one billion spoofed calls in June 2020. However, Mr. Shaffer concluded saying that, “Predictions about FCC enforcement behavior in 2021 are difficult because the current chair, Ajit Pai, will be stepping down on Jan. 20, concurrent with President-elect Joe Biden's inauguration…With the credits scrolling on the TCPA's 2020, the forthcoming decision in Duguid v. Facebook and the subsequent fallout will certainly make for a compelling sequel in 2021.”

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