Posted by Chris Alarie on Fri, 02/03/2023 - 14:01
Once again, there are a number of notable stories from the past month relating to Telephone Consumer Protection Act (TCPA) compliance, Florida Telephone Solicitation Act (FTSA) compliance, and call deliverability that are worth gathering in one blog post.
Citrix Settles TCPA Class Action for $2.75 Million
One of the most notable trends in the nearly two years since the Facebook decision is the fact that, while TCPA complaints are being filed much less often overall, a larger portion of them are class actions. And while post-Facebook rulings at the district and circuit court level have mostly been less likely to favor automatic telephone dialing system (ATDS) claims than pre-Facebook rulings, there are still do not call (DNC) list risks for callers. A recently approved class action settlement in a Maryland district court serves as an example of such. In Boger v. Citrix, the plaintiff alleged that he continued to receive marketing calls from the defendant after being asked to be placed on their internal DNC list. As a result, the defendant will now pay out millions of dollars to a class of nearly 550,000 people.
FCC Gives Triennial STIR/SHAKEN Report to Congress
The TRACED Act included a number of reporting requirements for the Federal Communications Commission (FCC) and other entities. One of which was a requirement that the FCC give a report to Congress every three years about STIR/SHAKEN call authentication protocols. The FCC issued their first such Triennial Report on the Efficacy of the Technologies Used in the STIR/SHAKEN Caller ID Authentication Framework at the end of December and, unsurprisingly, determined that STIR/SHAKEN remains viable and effective. The era of call blocking and labeling is fully upon us and STIR/SHAKEN is the federal government’s weapon of choice.
Chipotle Sued Under Florida Mini-TCPA
The FTSA is ground zero for post-Facebook, state-level mini-TCPAs, with Oklahoma following suit and other states such as Maryland seemingly on the way. As predicted when the FTSA was first signed into law, it has taken the mantle from the TCPA as the largest source of risk for text message marketing. A recent class action complaint against Chipotle illustrates this. In Diaz v. Chipotle, the plaintiff alleges that she received an unsolicited text message from the burrito chain advertising a Halloween-themed promotion. She seeks to represent a statewide class of all Florida residents who received similar messages without having given consent. Notably, this complaint was filed in federal court in the Central District of California despite the plaintiff being a Florida resident and the law being a state-level law from Florida.
President Biden Renominates Sohn for FCC
In the latest turn in an unusual story, President Joe Biden again renominated Gigi Sohn to fill the long vacant fifth Commissioner spot. Biden originally nominated Sohn in October of 2021 after an unprecedented delay. But Sohn’s Senate confirmation has been stalled largely thanks to extensive lobbying against her by the cable television industry. There had been some speculation that Biden would pull Sohn’s nomination and put forward a candidate more favorable to pro-business centrists but the Democrats’ unexpectedly strong performance in the midterm elections seems to have led the President to renominate Sohn instead. It remains unclear if she has the votes for Senate confirmation.
FCC Asks Congress to Expand the TCPA’s ATDS Definition
FCC Chair Jessica Rosenworcel has been outspoken in her dissatisfaction with the Supreme Court’s ruling in Facebook v. Duguid, claiming that its statutory reading of the ATDS definition hampers the FCC’s efforts to prevent illegal and unwanted robocalls. At the beginning of this year, Rosenworcel sent a letter to Congress requesting a legislative update to the TCPA that expands the law’s autodialer definition. Congress has not yet indicated that it will introduce such legislation. But some sort of legislative action can’t be written off completely because anti-robocall politics remains one of the only remaining bipartisan stances in an increasingly polarized federal government.