Monthly TCPA Digest — December 2020

We are pleased to present our latest Monthly TCPA Digest, providing insights and news related to the Telephone Consumer Protection Act (TCPA). This month we report on the oral argument at the Supreme Court in Facebook, Inc. v. Duguid, et al., a case about the statutory definition of an automatic telephone dialing system (ATDS) under the TCPA. The Facebook case arose from a circuit split over whether a device that stores and automatically dials telephone numbers without sequentially or randomly generating those numbers can be an ATDS, as determined by the Second, Sixth, and Ninth Circuits. The Third, Seventh, and Eleventh Circuits, in contrast, held that an ATDS must be able to perform random or sequential number generation. The Justices and advocates sparred about the language in the statute and how it should be applied to modern technology.

In this month’s Regulatory Update, we discuss the FCC’s adoption of an Order on Reconsideration of its 2016 Broadnet Declaratory Ruling, which held that the TCPA does not generally apply to calls made by or on behalf of the federal government on official government business. In contrast, the Order on Reconsideration held that while federal and state governments are sovereign entities that do not need prior express consent to call consumers, federal and state contractors must obtain prior express consent unless they meet certain criteria. The Order on Reconsideration also calls for local governments to secure prior express consent from consumers to make calls. In addition, the FCC adopted a Notice of Proposed Rulemaking in connection with its ongoing implementation of the TRACED Act to reduce unwanted and illegal robocalls. The Notice seeks comments about the FCC’s proposal to establish a web portal monitored by the Enforcement Bureau through which private entities could voluntarily share information about a call or text that violates the law regarding robocalls or spoofing.

If you have suggestions for topics you’d like us to feature in this newsletter, or any questions about the content in this issue, please feel free to reach out to an attorney on Mintz’s TCPA and Consumer Calling Practice team.

In This Edition

Part I – TCPA Litigation Update

• Supreme Court Hears Oral Argument on TCPA Autodialer Provision

Part II – TCPA Regulatory Update

• FCC Reverses Course on Broadnet Order on Reconsideration, but Practical Impacts May Be Limited

• Implementing Section 10(a) of the TRACED Act

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