On March 16, 2018, the D.C. Circuit Court of Appeals upheld in part and vacated in part the Federal Communications Commission’s (FCC) 2015 Declaratory Order, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278. ACA International vacated the FCC’s most recent clarification of the definition of an Automatic Telephone Dialing System (ATDS) and its establishment of a one-call “safe harbor” for calls to reassigned numbers, and it upheld the FCC’s decision that consumers may revoke consent to receive autodialed calls by “any reasonable means.” TCPA Defendants are likely to cite ACA International as creating uncertainty regarding the legal definition of ATDS but we will explain why ACA does not constitute a significant change in the law and actually has significant pro-consumer implications.
What You Will Learn
- How to plead TCPA claims to position your cases to survive 12(b)(6) motions to dismiss based on ACA International v. FCC
- What to include in your expert reports to survive summary judgment when the Defendant denies using an ATDS
- What to expect next as the law regarding ATDS under the TCPA continues to develop
Amy E. Tabor practices at Caddell & Chapman, which recently served as Class Counsel in nationwide TCPA litigation against Sirius XM. Despite Sirius XM’s contention that predictive dialers used in “click-to-call” mode did not qualify as ATDS’s, Caddell & Chapman secured a settlement offering class members three months of free access to Sirius XM’s Select service or pro-rata participation in a cash settlement fund. She has also represented consumers in numerous other types of class actions, including FCRA, breach of warranty, and consumer fraud cases. She has successfully briefed motions for class certification, appeals from grants of class certification, and numerous class settlement approvals. Ms. Tabor is a 2003 graduate of the University of Texas School of Law, where she graduated with high honors and was a member of the Texas Law Review and the Order of the Coif.
Beth E. Terrell, a founding member of Terrell Marshall Law Group PLLC (TMLG), concentrates her practice in complex litigation, including consumer, defective product, and wage and hour class actions. Ms. Terrell has served as co-lead counsel on numerous multi-state and nationwide class actions, including a number of TCPA class actions, including two MDLS: In re Capital One Telephone Consumer Protection Act Litigation and In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation. Ms. Terrell serves as Treasurer of the Public Justice Foundation, is Chair of the Washington Employment Lawyers Association and the WSAJ Consumer Protection Section, and is the Vice-Chair of the Northwest Consumer Law Center. In addition, she is an active member of AAJ, NACA, and NCLC’s Partners’ Council.