As many of you know, I stop work for the year on December 19 and retire for a long winter’s nap. This year will be no exception and my last day in the office–and posting on TCPAWorld.com–will be today.
Don’t worry though, our diverse and capable team will keep up the hard litigation fight while I’m out and will also keep providing timely and fun TCPA-content to help you stay warm through the holiday season.
Before I head out for an eggnog-induced sugarplum slumber, however, I thought I’d share the top ten biggest TCPA news stories of the year– based upon the number of reads each of our stories received. Oh what fun!
Here we go:
10. The Eleventh Circuit Court of Appeal Holds that Receipt of A Single Text Message is Insufficient to Afford Article III Standing–and Suggests TCPA Class Actions Are No Longer Certifiable
Coming in at number 10 is one of the most surprising developments of 2019. Setting the stage: Courts in the Eleventh Circuit have historically taken an extremely expansive view of Article III standing. Indeed the Eleventh Circuit Court of Appeal once held that anyone could sue for any TCPA violation–even if it did not effect him or her directly–because the TCPA is a “bounty hunter” statute. (No really–this happened. See Palm Beach Golf Center-Boca, Inc. v. Sarris, 771 F. 3d 1274 (11th Cir. 2014).) But–as our tenth most read article of the year explained— in Salcedo v. Hanna, No. 17-14077 (11th Cir. Aug. 28, 2019) the Eleventh Circuit Court of Appeal took a hard look at the TCPA and concluded that the receipt of a single unwanted text message simply does not cause “concrete harm” of the sort required under Article III. This is hardly surprising as the TCPA is designed to prevent invasions of privacy– yet cell phones are commonly taken into public locations where no expectation of privacy exists. Thus although unwanted text messages might sometimes wake us up at night or disturb a family dinner, they do not always do so. In the absence of any harm, therefore, no TCPA violation arises from a single text (at least not in federal court.) Taken in conjunction with the Eleventh Circuit’s even more recent Cordoba ruling, TCPA class actions may soon be coming to an end as proving harm to each individual class member is almost certainly an individualized issue–yet class members lacking harm cannot recover damages at trial.
9. TCPA Personal Liability for Officers and Directors Is Out of Control as a CEO Can be Held Personally Liable for Trying to Help his Company Complaint with the TCPA
Our ninth most read article of the year recounts the strange tale of a CEO who ran a list of phone numbers through a vendor’s TCPA compliance software and thereby became liable for the calls made by his company. I don’t really know what to say about this case other than–that’s just terrible policy. The TCPA has long been one of the few areas of the law where an officer of a corporation can be held personally liable for violations of a statute for acts taken in their corporate capacity. Earlier in the year we saw an officer escape liability for TCPA violations arising–allegedly–due to his failure to implement TCPA policies. Thanks goodness. But the idea that an officer can be held liable for trying to help his company comply with the TCPA turned a lot of heads and–I think–opened a lot of eyes.
8. The 2003 and 2008 Predictvie Dialer Rulings Are No Longer Being Followed by the Courts
In the eight hole is an article I wrote in September, predicting that the 2003 and 2008 FCC predictive dialer rulings would never be followed by a Court again in light of Marks and ACA Int’l. For context: the FCC’s earlier rulings had expanded the definition of ATDS to include predictive dialers– a form of dialing commonly used to efficiently reach consumers and assure agents are available to take their calls. The D.C. Circuit Court of Appeal set aside those rulings in March, 2018 but the immediate response from most district courts was to continue to treat the rulings as binding given some ambiguity in the ACA Int’l opinion. But last September the Ninth Circuit Court of Appeal held that ACA Int’l had, in fact, set aside those earlier FCC rulings–a determination that cleared the way for district courts to adopt their own interpretation of the TCPA’s ATDS definition. Nonetheless a handful of courts continued to apply the earlier FCC rulings–at least until a district court in Florida reversed a Magistrate Judge’s recommendation that those Orders be followed. I predicted at the time that no court would ever again follow the 2003 and 2008 orders and I am happy to report that to date, none have. The last time the rulings were relied upon? March 28, 2019.
7. A Debt Collector is Hit With a $267MM TCPA Judgment Arising out of Calling Skip Traced Phone Numbers
In case anyone wonders whether the TCPA has teeth–it does, as our number seven story of the year demonstrates. A California jury hit a debt collector with a $267MM dollar verdict after the collector had placed skip traced phone numbers on an ATDS to attempt calls. While the verdict is huge, it really should be clear to everyone by now that making dialer calls without consent–such as to numbers obtained from third-party sources– to cell phones is really a pretty big no no. I was pleased to join ACA’s podcast to discuss the fall out from this decision, and what collectors can do to comply with the TCPA in the wake of this ruling.
6. The TCPA Is Under Intense First Amendment Scrutiny–and Facebook is Leading the Charge
This story brings me intense personal satisfaction. I have been arguing since 2016 that the TCPA is flat unconstitutional. It remains the single broadest restriction on constitutionally-protected speech in our nation’s history, and is a thumb in the eye for anyone who loves free speech. Worse still, the watered-down version of “strict scrutiny” that has been so recently applied by district courts to the TCPA created a precedent that formed a threat to all of our most fundamental freedoms. Not to be outdone, however, two Circuit Courts of Appeal have issued rulings that may even set worse precedent by striking unconstitutional content-based exemptions to the TCPA, thereby expanding the reach of the statute rather than striking it down. Good lord what a bad idea. Luckily Facebook is leading the charge for sanity and has filed excellent papers to the US Supreme Court hoping to have this critical issue reviewed at the highest level. My piece analyzing their petition was our sixth best read article of the year.
5. ViSalus is Hit with a $967MM TCPA Verdict– But the Company’s Lawyers Fight On
If you’re a fan of epic sagas, our fifth best read story is for you. Back in April we broke the news that multi-level marketing company ViSalus had been hit with a massive jury verdict that might amount to a judgment of over $2.5BB. Shortly thereafter the Court denied Plaintiff’s bid to treble damages, maxing out the potential award at $967MM. But ViSalus’ lawyers fought on and received what appeared to be a stay of execution when the FCC issued a retroactive waiver of liability for the conduct at issue. But in a crushing change of fortune the Court found that ViSalus had waived any right to rely upon the FCC’s ruling by failing to raise it earlier in the case. Instead, the Court held ViSalus got “exactly what it asked for” and refused to modify its earlier ruling on certification or grant a new trial.
4. The Ringless Voicemail Battle Kicks into High Gear with VoApps Battling Tooth and Nail
Not long ago it looked like the argument that ringless voicemails were not subject to the TCPA was dead–and for all the wrong reasons. But then along came VoApps founder David King and gave ringless voicemail users a fighting chance after all. As our fourth most read story of the year explains, ringless voicemails are not actually a call to a number to a wireless carrier–rather they are a data transmission through a business-class landline. And that, the argument goes, might make all the difference. As the cherry on top David agreed to join the Unprecedented podcast to discuss rignless voicemail and why it is not subject to the TCPA after all. Wow.
3. The TRACED Act Changes Everything– Sort Of
Just today the compromise version of the TRACED Act passed the Senate and is headed to Mr. Trump’s desk for signature to become law. But the lead up to this momentous occasion has been long and arduous and a trio of articles covering TRACED come in tied for third position on our “most read” list for 2019. First, we covered the House version of the bill in a wildly popular article that explored what the “New TCPA” might look like back in July. Then, my huge Law360 article compared the Senate’s TRACED bill with the Stopping Bad Robocalls Act and explained where the daylight was between the two statutes that needed to be reconciled before the bill could become law. Finally, TCPAWorld.com broke the news of the release of the new compromise bill’s text to the TCPAWorld faithful–an article that garnered huge attention. Just days later we provided our definitive guidance on the compromise bill that now appears to be slated to become the law of the land.
2. Five9’s Predictive Dialer is Deemed an ATDS and Five9’s Manual Dialer Solution Might be Part of the Same Dialing “System”– Meaning Manual Calls Might be Subject to the TCPA
The second most read article of the year covers the scariest TCPA development of the year–a case out of Virginia in which it was held: i) that Five9’s predictive dialer is an ATDS because it can randomly or sequentially generate numbers (yikes!); and ii) the use of Five9’s manual dialing solution by agents in a completely separate call center might be deemed the same “system” meaning that even those manual calls might be subject to the TCPA. Unsurprisingly this article has garnered huge attention and it comes on the heals of an earlier ruling in which a Court held that the use of an ATDS as a workflow tool in an otherwise manual process might also convert manual calls–i.e. calls made using a physical telephone–into ATDS calls under the TCPA.Eesh. That’s tough stuff.
2. (Bonus) Calls to Landlines Might Still be Calls to Cell Phones After Neustar’s Scrub Process Deemed Non-Dispositive By a Court of Appeal
Ok, so this was actually our third most read article but I overlooked it and had to add it back in just as I was about to publish the post. Sorry. Bottom line– the First Circuit Court of Appeal issued a stunning ruling this August that calls to a number assigned to a wireline service–as reflected on Neustar and by the fact that the service offerer only provided wireline numbers– might still be deemed calls to wireless numbers, merely because the Plaintiff received the calls on his cellular handset. This one has to be read to be believed.
1. John Oliver Changes the (TCPA) World With a Highly-Misleading (IOO) But Extremely Impactful Robocall Hit Piece
Far and away our best read story of the year was our fact-checking of John Oliver’s hilarious but–in our opinion–highly misleading piece on the robocall epidemic. The bit ends with Oliver using a giant hand to hit a huge red button to launch robocalls at the FCC asking it not to clarify the TCPA. What a mistake. As we point out in the article, it is simply fiction to imagine the TCPA does anything to stop robocalls when robocalls quadrupled after the FCC expanded the TCPA in 2015 to cover absolutely any piece of modern dialing equipment. Instead the TCPA is merely (mis)used by consumer lawyers against legitimate American businesses–the folks who are not behind the robocall epidemic. It simply makes rich lawyers richer while threatening personal liability on well-meaning officers and companies, while having no impact on robocall volumes–and we’ve done the research to prove it. Sadly, then the biggest TCPA story of 2019 is the disinformation campaign launched by some to expand the reach of a statute that has already been misapplied for decades.
Well that’s it. Hope you enjoyed it folks. 2019 has been a heck of a ride. I am very grateful for all of my true friends who have stuck with me through our transition– see you all in 2020!!
Comfort and joy my friends. Comfort and joy.