Duane Morris TCPA Class Action Review – 2024

TCPA Class Actions I. Executive Summary

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. , has long been a focus of consumer litigation, particularly for class actions. For many years, the plaintiffs’ class action bar has successfully asserted TCPA causes of action based on allegations that a defendant used an automatic telephone dialing system (ATDS) to call or send messages to a cellphone without first obtaining prior express written consent. An ATDS is “equipment which has the capacity: (i) to store or produce telephone numbers to be called [or texted], using a random or sequential number generator, and (2) to dial such numbers.” 47 U.S.C. § 227(1)(A). In 2021, the U.S. Supreme Court issued its ruling in Facebook v. Duguid, et al. , 141 S. Ct. 1163 (2021), which adopted a narrow interpretation of what devices count as an ATDS. Before Duguid , some federal circuits held that equipment could qualify as an autodialer just because it autodialed stored phone numbers that had not been randomly or sequentially generated in the first instance. But the Supreme Court rejected this interpretation. It held that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” because a contrary interpretation “would capture virtually all modern cell phones, which have the capacity to store telephone numbers to be called and dial such numbers.” Id. at 1171-73. Enacted in 1991, the TCPA is a federal statute aimed at protecting consumers from companies that use ATDS to engage in mass telemarketing methods, including robocalls. The TCPA originally focused on unwanted telephone calls and faxes. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). The TCPA also bars a caller from making a “prerecorded” phone call to a cellphone without the called party ’ s consent. 47 U.S.C. § 227(b)(1)(A)(iii). Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. For example, text messaging is now used by businesses for many reasons, including to communicate with customers, solicit consumer feedback, announce product promotions, identify the status of a delivery, and utilize two-factor security authentication. As a result, courts have interpreted the TCPA to include text messages. See e.g ., Campbell-Ewald Co. v. Gomez, et al. , 136 S. Ct. 663, 667 (U.S. 2016). The TCPA also empowers the Federal Communications Commission (FCC) to “prescribe regulations to implement” the statute, and to create exemptions to statutory liability “by rule or order.” 47 U.S.C. § 227(b)(2)(B). Under this authority, the FCC has created a “two-tier system of consent” for TCPA liability, with different kinds of calls requiring different kinds of consent. First, prerecorded calls that do not include “telemarketing” are lawful as long as the called party has provided “prior express consent.” 47 C.F.R. § 64.1200(a)(1)-(2). Second, prerecorded calls that do include “telemarketing” require “prior express written consent.” Id. at § 64.1200(a)(2) (emphasis added). Prior express consent is a lower threshold insofar as a called party generally provides such consent simply by giving their phone number to a business in connection with a transaction. Prior express written consent, by contrast, is harder to obtain – to provide such consent, a party must sign a written agreement that “clearly authorizes” the caller to send “telemarketing messages using a . . . prerecorded voice.” Id. at § 64.1200(f)(9). The FCC has created several exceptions to the rule that a telemarketing call requires prior express written consent. Id. at § 64.1200(a)(2). For example, under the “health care message” exception, a telemarketing call that “delivers a health care message” requires only prior express consent, not prior express written consent. Id. at § 64.1200(a)(2). Notably, in July of 2023, the FCC issued the TCPA Exemptions Order (the Order) which introduced

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