The Telephone Consumer Protection Act COHEAO Annual Conference Mark W. Brennan Mark.Brennan@hoganlovells.com January 2017

Disclaimer Nothing in this slide deck is intended to provide legal advice. In addition, nothing in this slide deck is intended to provide legal conclusions about how a court’s or the FCC’s language should be interpreted, nor have we sought to apply decisions to specific entities or specific circumstances Hogan Lovells

Overview of the TCPA Congress enacted the TCPA in 1991 specifically to curb aggressive telemarketing practices: Using automatic dialing equipment to make unsolicited calls to random or sequential telephone numbers Calling sequential telephone numbers in a way that ties up a block of telephone numbers and creates public safety risks Concerns about telemarketers shifting calling costs to wireless consumers Hogan Lovells

Overview of the TCPA Imposes a number of restrictions on telemarketing calls, faxes, and other outbound communications Some restrictions apply to non-telemarketing calls Implemented by the Federal Communications Commission (“FCC”) Hogan Lovells

Overview of the TCPA Two increasingly problematic provisions: No autodialed or prerecorded or artificial voice calls to wireless telephone numbers, absent an emergency or “prior express consent.” Applies regardless of content (e.g., includes collection and servicing calls) Applies to text or short message service (“SMS”) messages Additional FCC “written consent” rules apply to telemarketing calls New federal debts exemption Hogan Lovells

Overview of the TCPA Two increasingly problematic provisions: No prerecorded or artificial calls to residential telephone numbers without “prior express written consent.” Exceptions Not a solicitation or telemarketing Not made for a commercial purpose Emergency calls By or on behalf of a tax-exempt nonprofit organization Healthcare calls subject to HIPAA Federal debts FCC rules impose additional requirements Hogan Lovells

Overview of the TCPA The TCPA defines an autodialer (“automatic telephone dialing system”) as “equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The application of this definition is a key unsettled issue in today’s TCPA landscape. Hogan Lovells

Overview of the TCPA TCPA Violations Can Be Costly Minimum statutory damages of $500 per call. Statutory damages of $1,500 per call for knowing or willful violations. Class actions allowed, with no cap on damages or de minimis exception: 1,000 calls = at least $500,000, potentially $1.5 million Lawsuits are targeting a variety of industries. FCC can also enforce for rule violations. Hogan Lovells

Overview of the TCPA Wireless rules increasingly important, particularly when serving younger Americans NOTE: Adults are aged 18 and over; children are under age 18. SOURCE: CDC/NCHS, National Health Interview Survey. Hogan Lovells

Anatomy of a TCPA Lawsuit Rapid Growth in TCPA Cases Filed Source: WebRecon LLC Hogan Lovells

Anatomy of a TCPA Lawsuit Case volume continued to climb in 2016 – more than 4,000 TCPA cases filed. Multiple class action settlements higher than $30 million. $76 million (Caribbean Cruise Line) $75 million (Capital One) $45 million (AT&T) $40 million (HSBC Bank) $35 million (Sirius XM) $30.4 million (Wells Fargo) Hogan Lovells

Looking Ahead D.C. Circuit Appeal of 2015 FCC Order (ACA International v. FCC) The July 2015 FCC Order was controversial and hotly contested Appeal filed just days after Order was issued Appeal consolidated with 10 others Petitioners challenge: FCC’s interpretation of the definition of ATDS FCC’s imposition of liability for calls to reassigned numbers and provision of a one-call safe harbor Standard imposed for handling revocation of consent Oral arguments held in October / decision expected soon. Hogan Lovells

Looking Ahead New Prior Express Consent Petition The Petitioners ask the FCC: (a) to overturn the [FCC]’s improper interpretation that ‘prior express consent’ includes implied consent resulting from a party’s providing a telephone number to the caller; and (b) to uniformly require that for all calls made to cellular and residential lines subject to the TCPA [ ], ‘prior express consent’ to such telephone calls must actually be (i) express consent (ii) specifically to receive autodialed and/or artificial voice/prerecorded telephone calls, (iii) at a specified telephone number, and (iv) be in writing.  Hogan Lovells

New Presidential Administration Looking Ahead Issues to Watch New Presidential Administration New Congress Hogan Lovells