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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

Part II – Litigation Update


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Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.
Jonathan Garvin is an attorney at Mintz who focuses on legal challenges facing companies in the communications and media industries. He advises clients on transactional, regulatory, and compliance issues before the FCC involving wireless, broadband, broadcast, and cable matters.

Joshua Briones

Member / Managing Member, Los Angeles Office

Joshua Briones is a commercial litigator who defends consumer class actions for Mintz. He's represented clients in a wide range of industries, including financial services, life sciences, manufacturing, and retail, in cases involving false advertising, unfair trade practices, and other claims.
E. Crystal Lopez is a Mintz Associate who focuses her practice on class action defense, with an emphasis on consumer fraud, data privacy, marketing, and compliance issues claims. She has defended corporate clients against class actions at all stages of litigation.