Telephone and Texting Compliance News — November 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 month’s newsletter, we look at a new FCC Draft Report and Order, which, if adopted, would potentially require “one-to-one consent” from consumers for robotexts and robocalls, disrupting industry practices. Additionally, we provide an overview of a hearing titled “Protecting Americans from Robocalls” held by the US Senate Commerce, Science, and Transportation Committee’s Subcommittee on Communications, Media, and Broadband. Subcommittee members discussed how illegally spoofed calls, robocalls, and deceptive telemarketing are continuing to harm Americans and heard testimony about the impact of the Federal Trade Commission’s and Federal Communications Commission’s work to curb illegal and unwanted calls. We also discuss a bill reintroduced by four Senators, the Deter Obnoxious, Nefarious and Outrageous Telephone (“DO NOT”) Call Act, which would authorize prison sentences for willful and knowing violations of the TCPA and double fines for illegal spoofing. Finally, we cover the FCC’s Notice of Inquiry into the impact of artificial intelligence on robocalling.

In our Litigation Update, we report on the Ninth Circuit’s decision in True Health Chiropractic, Inc. v. McKesson Corp., a TCPA class action case involving a fax. In its decision, the Ninth Circuit first affirmed the lower court’s summary judgment in favor of the plaintiff, agreeing that the plaintiff hadn’t given consent to receive the fax. The appeals court also affirmed the decertification of the class, citing the FCC’s 2019 declaratory ruling in Amerifactors, which concluded that the TCPA does not apply to faxes received through an online fax. We also review the Arizona federal court’s decision in Howard v. Republican Nat’l Comm. Relying on the Ninth Circuit’s recent decision in Trim v. Reward Zone USA LLC, the district court held that a text message with a link to a video does not necessarily qualify as a call using an artificial or prerecorded voice.

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

Regulatory Update

• The FCC Contemplates Industry-Altering Changes to Securing Consent

• Senate Holds Hearing on “Protecting Americans from Robocalls”

• Senators Reintroduce Bill to Strengthen Robocalling Penalties

• FCC Approves Inquiry into Impact of Artificial Intelligence (AI) on Robocalling

Litigation Update

• Amerifactors Alive and Well in the Ninth Circuit

• Trim v. Reward Zone’s Aftershocks

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