Summer was busy for those following the litigation, enforcement, and regulatory landscape shaping telemar- keting business practices. These practices are, for the most part, honed by three groups: the Federal Communications Commission (FCC), Federal Trade Commission
(FTC), and courts that adjudicate private lawsuits brought
under the Telephone Consumer Protection Act (TCPA).
This summer, each of these groups had something to offer.
Funny, I Didn’t Hear a Ring
Ringless voicemail technology, or direct-to-voicemail cell
messaging, allows telemarketers to leave messages directly on
a cell phone’s voicemail server. The messages are delivered
with no ring and no carriage over the cellular network. In
March, All About the Messaging LLC (AATM) filed a petition — which became a lightning rod — at the FCC, seeking
a pronouncement that the deployment of ringless voicemail
technology does not constitute a “call” under the TCPA.
Comments submitted to the FCC by the Republican
National Committee argued that “[p]olitical speech is ‘at the
core of the First Amendment,’ and subjecting direct-to-voicemail political messages to the TCPA would unnecessarily and
improperly restrict speech.” Likewise, a number of business
groups submitted comments pushing for a ringless voicemail
exception to the TCPA.
In opposition, a group of U.S. Senators wrote the FCC,
urging it to “protect consumers from unwanted, invasive, and
abusive ringless voicemails.” The Senators argued that Con-
gress’ goal when it passed the TCPA
was ensuring “whether at home or on
their mobile phones, consumers should
not be subjected to intrusive and unso-
In June, before the issue reached
resolution, AATM withdrew its pe-
tition. However, the issue is likely to
pop up again because the FCC still has
a similar petition pending from 2014
from a company called VoApps.
No Take Backs?
Under the TCPA, consumers must
provide prior express written consent
to receive autodialed or prerecorded
telemarketing calls to their cellphones.
However, a recent case in the U.S.
Court of Appeals for the Second Circuit addressed whether
consent may be revoked by a consumer unilaterally.
In a first-of-its-kind decision, the three-judge panel unanimously affirmed a district court’s award of summary judgment
to defendant Lincoln Automotive Financial Services on the
plaintiff’s claim, which alleged that Lincoln violated the
TCPA by placing autodialed and prerecorded message calls to
the plaintiff’s cellphone without appropriate consent.
The court held that, under the TCPA, a party is not per-mitted to revoke consent where it is a term of a contract — in
this case, an automotive lease.
It noted that this decision did not conflict with previous
decisions by the Third and 11th Circuits, or the FCC’s July
2015 Omnibus TCPA Order, which all held that a consumer
generally may revoke consent once given under the Act. The
court found that the plaintiff could not unilaterally alter the
terms of the express contract between the parties and, thus,
could not revoke his consent.
There are two things of note in this decision. First, the
appellant has moved for reconsideration by the full Second
Circuit, with a number of parties filing “friend of the court”
briefs. Second, under the TCPA, a telemarketer must advise
the consumer that his or her consent is not required as a condition of purchasing the telemarketer’s products or services —
the terms of Lincoln’s contract are likely enforceable only for
collection and other non-telemarketing types of calls.
It Wasn’t Me
The FTC announced in August that it would begin releasing robocall and do-not-call consumer complaint data to
telecommunications providers and other industry partners
on a daily basis. The data will be similar to data the FCC has
released weekly since 2015. While sharing consumer complaint data with call-blocking technology innovators to help
stop unlawful robocalls may be well intended, it also is likely
to provide a treasure trove for plaintiffs’ attorneys who make
their livings filing TCPA lawsuits.
This data dump, coupled with unscrupulous telemarketers’ widespread practice of “spoofing” legitimate marketers’
telephone numbers when making illegal calls, may result in
many compliant telemarketers being dragged into baseless
It probably would be more helpful to the technology innovators fighting robocalls if the FTC provided consumer complaint information in a more direct manner — one less likely
to spur class action litigation. ;
A Long, Hot Summer for
By Daniel S. Blynn