1. The Telephone Consumer Protection Act
COHEAO Annual Conference
Mark W. Brennan
January 2017

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. New Presidential Administration
Looking Ahead
Issues to Watch
New Presidential Administration
New Congress
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