United States: Monthly TCPA Digest — August 2020

We are pleased to present our latest Monthly TCPA Digest, providing insights and news related to the Telephone Consumer Protection Act (TCPA). In this month's edition, we cover the Sixth Circuit's ruling in Allan v. Pennsylvania Higher Education Assistance Agency, which expands a circuit split on the definition of an automatic telephone dialing system (ATDS) under the TCPA. The Sixth Circuit sided with the Second and Ninth Circuits in holding that equipment that stores and dials telephone numbers is an ATDS even if it dials numbers that were not randomly or sequentially generated. In contrast, the Seventh and Eleventh Circuits found that a stored-number system without the ability to randomly or sequentially generate numbers is not an ATDS. The Supreme Court is expected to resolve the split in Facebook Inc. v. Duguid, a case arising from the Ninth Circuit.

In our Regulatory Update, we report on the FCC's recent clarification of its earlier ruling that the TCPA's emergency purposes exception applies to communications about COVID-19. The FCC confirmed that calls and text messages made by or for commercial labs, health insurers, physicians, and pharmacies do not require prior express consent from recipients when they ask individuals to donate their plasma after recovering from COVID-19. In addition, we discuss a joint application filed by several consumer groups seeking reversal of the recent P2P Alliance ruling by the FCC that a calling platform or other equipment used to make calls or send texts to a large volume of telephone numbers is not necessarily an autodialer under the TCPA.

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 - TCPA Litigation Update

• The Sixth Circuit Sides with Ninth and Second Circuits in Holding that a Stored Number Device is an ATDS Under the TCPA Even if it Cannot Randomly Generate Numbers

Part II - TCPA Regulatory Update

• Consumer and Governmental Affairs Bureau Releases Further Clarification on Emergency COVID-19 Related Calls

• Parties Seek Reconsideration of Late-June P2P Alliance Declaratory Ruling

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.