New FCC rules are absolutely on the way this year.  In early 2023, the FCC made clear it is out for blood. The FCC recently shut down several innocent dialer vendors and telephone carriers merely because of the alleged acts of one isolated telemarketing client.  The FCC has also proposed rules that might cause substantial harm to the lead generation industry.  For example, the proposed new FCC rules would prohibit the use of partner lists in TCPA consent forms and might even require that consent be provided directly to the seller instead of an aggregator or lead vendor.  Oh! For the first time this year, the FCC also directly claimed that using local-presence caller ID, even when used properly, is deceptive/prohibited. Absolutely ridiculous, but let's watch and see which new FCC rules actually get passed and make it into the regulations.

On April 1, 2021 the supreme court ruled that to be an autodialer, the system must use a random or sequential number generator, but this has not ended ATDS/autodialer litigation.  Some plaintiffs still survive the initial pleading stage of a lawsuit merely by alleging that a dialer can store a list and then by programed to dial randomly or sequentially down that list.  Plaintiffs have focused more on prerecorded message and DNC list cases, but dialer cases are still a threat.  The Facebook ruling helped a lot, but really it just shifted the focus of plaintiffs attorneys.

One of the most significant court rulings during 2018 was in Marks v. Crunch, in which the Ninth Circuit found that any device with the capacity to store telephone numbers falls under the TCPA’s definition of ATDS, whether it can randomly or sequentially dial those numbers or not. After a series of appeals, Crunch has filed a petition for writ of certiorari with the Supreme Court, meaning that they have asked the Supreme Court to hear the case. This doesn't require the Court to actually take on the case, but after years of uncertainty over the definition of ATDS there is now a chance that the highest court in the U.S. might rule on the issue. Allen, Mitchell & Allen PLLC will keep you informed about the developments of this case. Learn more about autodialer laws, robocall laws, and telemarketing compliance.

Yahoo sued its insurance provider, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, because they refused to cover losses incurred over alleged violations of the TCPA. Yahoo argues that the insurance company had the duty to defend them from TCPA claims under their general liability insurance policy. National Union Fire Insurance refused the coverage, arguing that the policy did not apply to TCPA suits. A District Court sided with the insurer, but the Court of Appeals has determined that this is an unsettled issue and has asked the Supreme Court of California to weigh in on the question of whether an insurance provider has the duty to protect its clients against TCPA claims. Read more here and here. This is an important and interesting case to keep an eye on. It can be difficult for businesses to find insurance providers who are willing to cover them against TCPA claims, and this ruling could potentially open up more opportunities for coverage. Contact a TCPA lawyer or telemarkeing attorney if you need help understanding any telemarketing rules or telemarketing regulations.

NorthStar Alarm Services, LLC has filed a petition with the FCC asking for the agency to rule that soundboard technology, also known as avatar, does not constitute a prerecorded message under the TCPA. Soundboard technology functions by allowing a caller to communicate with a call recipient by using prerecorded voice snippets to carry on the conversation.  Specifically, NorthStar is asking the FCC to rule that:  "1. The use of soundboard technology does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA; or, in the alternative,  2. The use of soundboard technology on a one-to-one basis, whereby the soundboard agent conducts only one call with one individual at a single time, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA."  Read the full petition here. Learn more about avatar telemarketing laws.

On November 14th, the FCC struck down a rule that required opt-out notices to be included on faxes that were sent with the prior consent of the fax recipient. According to the order, the FCC, "[Takes] this action in response to the decision of the Court of Appeals for the D.C. Circuit finding that the rule 'is unlawful to the extent that it requires opt out notices on solicited faxes.' We also dismiss as moot ten pending petitions for retroactive waiver of the rule and two petitions for reconsideration of orders enforcing the rule."  Read a copy of this FCC order here.

In November 2017, the FCC and the FTC directed the Bureau of Consumer Protection to prepare a report that, "[Encompasses] both the progress made by industry, government, and consumers in combating illegal robocalls, and the remaining challenges to continuing these important efforts." The FCC is now seeking comments to help with the preparation of that report. Find the full press release here. Learn more about robocall laws and autodialer laws.

After several weeks of anticipation, the FCC has officially published its Second Further Notice of Proposed Rulemaking regarding Advanced Methods to Target and Eliminate Unlawful Robocalls. As stated in the press release, "In this Second Further Notice of Proposed Rulemaking, as part of our multiple-front battle against unwanted calls, we propose and seek comment on ways to address the problem of unwanted calls to reassigned numbers. This problem subjects the recipient of the reassigned number to annoyance and wastes the time and effort of the caller while potentially subjecting the caller to liability." Read the press release, which includes instructions for commenting, here. Learn more about telemarketing compliance, telemarketing rules, and telemarketing licenses.

This morning, a long awaited opinion was released in ACA International, et al., v. Federal Communications Commission. This is a very impactful decision for the telemarketing industry, as it partially strikes down the FCC's 2015 TCPA expansion. Read the full text of the opinion here. We will provide a more detailed analysis of the opinion shortly. Below is a short summary taken directly from the opinion:  
"We uphold the Commission’s approach to revocation of consent, under which a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller. We also sustain the scope of the agency’s exemption for time-sensitive healthcare calls.
We set aside, however, the Commission’s effort to clarify the types of calling equipment that fall within the TCPA’s restrictions. The Commission’s understanding would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute. We also vacate the agency’s approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The Commission concluded that calls in that situation violate the TCPA, apart from a one-call safe harbor, regardless of whether the caller has any awareness of the reassignment. We determine that the agency’s one-call safe harbor, at least as defended in the order, is arbitrary and capricious.
We therefore grant the petitions for review in part and deny them in part."

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