Telephone and Texting Compliance News — February 2023
We are pleased to present our latest edition of Telephone and Texting Compliance News, providing insights and news related to the Telephone Consumer Protection Act (TCPA). In this issue’s Regulatory Update, we cover the FCC Enforcement Bureau’s actions aimed at shutting down repeat robocaller OneEye LLC, including a cease-and-desist letter ordering the company to investigate and take steps to mitigate suspected illegal robocalling traffic on its network. The Bureau also issued a K4 notice informing OneEye that if it fails to comply by March 1, 2023, the agency will require all U.S.-based voice service providers to block OneEye. We also review a bill reintroduced in the U.S. House of Representatives that would increase robocalling penalties. The Deter Obnoxious, Nefarious, and Outrageous Telephone Calls Act of 2023 (“DO NOT CALL Act”) calls for harsher fines and possible jail time for certain TCPA violations. In addition, we report that in response to an Enforcement Bureau cease-and-desist letter, Twilio has blocked the originators of a nationwide mortgage scam robocalling campaign from accessing its platform.
In our Litigation Update, we discuss a petition to the Ninth Circuit requesting an en banc review of Borden v. E-Financial, LLC. In Borden, the court held that dialing numbers from a pre-existing list, even if the pre-existing list is sorted randomly or sequentially, would not qualify as dialing with an automatic telephone dialing system (ATDS). The petition argues that the multiple inapposite orders within the Ninth Circuit and between circuits demonstrate that Borden conflicts with the U.S. Supreme Court’s authority in Facebook, Inc. v. Duguid, which held that an ATDS must have the ability to store or produce a telephone number using a random or sequential number generator.
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 – Regulatory Update
Commission Takes Action Against Repeat Robocall Offender
Legislators Seek to Increase Robocalling Penalties
Twilio Stops Illegal Robocallers
Part II – Litigation Update
ATDS Definition Potentially in Flux: New Petition to the Ninth Circuit Urges En Banc Review of Borden ATDS Decision