Federal Communications Commission (FCC)

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Multiple class actions have alleged violations of the Telephone Consumer Protection Act (TCPA) for use of automated dialing systems (auto-dialer). In a 2015 Order, the Federal Communications Commission (FCC) defined an auto-dialer under the TCPA to mean any device with the theoretical “capacity” to place autodialed calls, even if had the potential to be transformed into an auto-dialer. Importantly, the FCC’s definition was prospective and applied even if additional software was required. However, several recent cases have narrowed the scope of the definition of “auto-dialer,” creating a potential hurdle for plaintiffs and creating confusion about the viability of class actions that hinge on whether the marketing platforms used to send messages to consumers qualify as “auto-dialers.”

In March, in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. Mar. 16, 2018), the D.C. Circuit limited the FCC’s 2015’s broad prospective definition of auto-dialer, stating that it would “subject ordinary calls from any conventional smartphone to the act’s coverage” and that the statute did not necessitate such a “sweeping swoop.”  Instead, the court reasoned, the proper analysis of whether a device is an auto-dialer under the TCPA should turn on the capacity of a device to behave as an auto-dialer, as well as the amount of effort required to turn a device into an auto-dialer.

Continue Reading Who You Gonna Call? (Just Don’t Use an Autodialer!)

The incoming administration promises big changes to federal consumer protection administration and enforcement. On January 5, 2017, Crowell & Moring’s Advertising & Product Risk Management Group hosted a webinar in which they discussed likely changes on the horizon to the Federal Trade Commission, Federal Communications Commission, and Consumer Financial Protection Bureau.

Please click here to access an on-demand recording of the webinar (note: you must complete the registration form for access).

Webinar details:

What can we expect to see with new commissioners? How will the newly reconstituted agencies manage ongoing legal battles affecting their jurisdiction that carry over from the Obama Administration? Our team engaged in a discussion highlighting our predictions and possible outcomes that will drive consumer protection enforcement and litigation for the next four years. We have highlighted where the government is likely to pull back, and where it may stay the course.

Key topics:

  • The FTC’s and FCC’s new majorities and what that portends for privacy and data security enforcement.
  • The uncertain future of Net Neutrality.
  • Will there be a CFPB by 2018 and if so, what will it look like?
  • What will the FTC focus on in 2017 and beyond?
  • The (likely) rise of the state AGs.
  • Into the breach: will private litigation fill the gap?

Christopher Cole, Peter Miller, and Kristin Madigan conducted this webinar.