The Telephone Consumer Protection Act

John L. Culhane, Jr., Esquireculhane@ballardspahr.com215.864.8535

2012 NCHELP Winter Legal MeetingJanuary 19, 2012New Orleans, Louisiana

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The Telephone Consumer Protection Act

• General Overview

• Select Legislative Developments

• Select Regulatory Developments

• Significant Case Law Developments – Substantive Liability

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Mobile Informational Call Act of 2011

• Introduced by Rep. Terry on September 22, 2011

• Hearings held on November 4, 2011

• Letter from NAAG sent on December 7, 2011

• Bill pronounced “dead” on December 17, 2011

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Mobile Informational Call Act of 2011 (cont.)

• Narrows definition of autodialer (use not capacity)

• Permits non-solicitation call for commercial purpose

• Defines prior express consent

• Deems providing a phone number to evidence consent

• Prohibits contrary state regulation

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FCC Proposed Amendments to TCPA Rules

• Released by the FCC on January 22, 2010 (FCC 10-18, CG Docket No. 02-278)

• Published in the Federal Register on March 22, 2010 (75 Fed. Reg. 13471)

• Comment periods ended May 21, 2010 and June 21, 2010

• Last indication of status in FCC semi-annual regulatory agenda – “Undetermined”

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FCC Proposed Amendments (cont.)

• Proposes to “harmonize” FCC and FTC positions

• Would apparently adopt a written consent requirement

• Would apparently eliminate the “established business relationship” exception

• Would apparently conform opt-out and disclosure mechanisms

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Significant Case Law Developments

• First American Financial Corporation v. Edwards (pending)

• Meadows v. Franklin Collection Service, Inc., 414 Fed. Appx. 230, 2011 WL 479997 (11th Cir. Feb. 11, 2011)