What is the TCPA again?
For years past, we regularly counseled our clients about the Telephone Consumer Protection Act (“TCPA”) because the cannabis industry, like many others, were being targeted for TCPA violations which were sometimes legitimate, sometimes not. For those who are still unfamiliar, the TCPA is a federal statute that was passed in 1991 to fight the incessant “robocalls” that were plaguing consumers at the time. The TCPA provides, in relevant part:
“It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States … to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States …”
The impact of Facebook v. Duguid
Last year, the Supreme Court decided a seminal case entitled Facebook v. Duguid, and narrowed the definition of the “automatic telephone dialing system” (“ATDS”) to only those devices that generate random or sequential phone numbers (which are now largely obsolete). Since most TCPA cases have been filed against companies who use a database of phone numbers instead of phone numbers that are truly randomly generated, this essentially slashed the number of TCPA cases that were being filed across the country. Another positive development was the introduction of H.R. 8334, a new bill entitled “Robotext Scam Prevention Act,” which would revise the definition of ATDS by striking “using a random or sequential number generator.”
Post-Facebook TCPA litigation
But, one year later, we can confirm that TCPA claims are still alive– they just look a little different. Many plaintiffs and plaintiffs’ counsel have tried to restyle their cases to get around the Facebook ruling, with some faring better than others. The Eighth and Ninth Circuits have made clear that ATDS claims are not going to survive, while the Eleventh Circuit has been a little more forgiving. While there is ambiguity and some disagreement amongst circuits, these claims will continue to live on.
And then, there are the other cases that largely focus on those communications that Facebook didn’t touch– like pre-recorded/artificial messages and ringless voicemails. And, there is definitely an uptick in claims under state laws that mirror the restrictions of the TCPA. For example, we’re aware of several cases filed in Florida under the Florida Telephone Solicitation Act that did not include the ATDS requirement, and allows for statutory damages under state law.
Ultimately, TCPA litigation is still alive and kicking, so it still remains important to make sure your cannabis businesses are in compliance. And, if you find yourself facing a demand letter or worse, a complaint, for allegedly violating the TCPA (that’s either valid or not), don’t discount it and contact us.
For previous coverage on this topic, see: