Telecommunications Privacy

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In an update to the original post, the Eleventh Circuit granted a reprieve to businesses worried the FCC’s “one-to-one” update to the TCPA Rule. The update was set to go into effect at the end of January, and according to the FCC would “close the lead generator loophole.” Specifically, it would have prohibited “generic consent.” Namely where people agree to be called by “affiliates,” “partners” or third parties. That prohibition would have been true even if those entities were specifically identified elsewhere. It would also have required consent from the individual to be called at a specific phone number, by a specific company, even though this is already required under TCPA.Continue Reading FCC’s One-to-One Consent Rule (UPDATED)

Maine entered the privacy fray last week when Governor Janet T. Mills signed legislation targeting internet service providers by prohibiting the sale of information about customers’ internet use. The new restriction covers, in part, customer web browsing history, application usage history, and geolocation information. An internet service provider may only use, disclose, sell or permit access to such information with either the customer’s consent or by complying with one of the few outlined exceptions in the statute.
Continue Reading Maine Passes Broadband Privacy Bill

In the recent case of Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) the Ninth Circuit broadly interpreted the TCPA’s definition of automatic telephone dialing system (often referred to as ATDS) to include devices with the capacity to dial stored numbers automatically. The device at issue in Marks is called the “Textmunication” system, which the Court described as “a web-based marketing platform designed to send promotional text messages to a list of stored telephone numbers.” The defendant, Crunch Fitness, had communicated with current and prospective gym members by sending them text messages via the Textmunication system. The plaintiff, Jordan Marks, had signed up for a gym membership and subsequently received three text messages over an 11-month period. Marks sued Crunch Fitness and alleged that the text messages violated the TCPA.  The district court granted summary judgment in favor of Crunch Fitness after concluding that the Textmunication system did not constitute an ATDS because it presently lacked a “random or sequential number generator” and did not have the potential to add this feature.
Continue Reading Ninth Circuit Opens Door for More Expansive Meaning of ATDS in TCPA Cases

The Court of Appeals for the District of Columbia Circuit recently set aside two key provisions of the Federal Communication Commission’s Declaratory Ruling and Order issued in 2015. Namely, the FCC’s definition of autodialing equipment covered by the TCPA and its approach to reassigned telephone numbers. The ruling has been seen as a major victory by the many businesses and organizations that together filed a lawsuit challenging the FCC’s Order, which had been criticized as confusing and difficult to understand. 
Continue Reading Federal Court Curbs FCC Robocall Restrictions