January 29, 2014

In this article, Jenner & Block Partner Amy M. Gallegos discusses the Telephone Consumer Protection Act (TCPA), a statute originally enacted to restrict telephone solicitations by limiting telemarketers’ use of machines that automatically dial random or sequential numbers.  Amy notes that an explosion of litigation under the TCPA occurred during 2013, “due largely to confusing and ambiguous FCC rulings.”  She then predicts what is on the horizon for TCPA-related litigation in 2014.  In particular, she forecasts that (1) lawsuits against cloud-based messaging services and mobile applications will increase as plaintiffs’ lawyers seek new targets, (2) courts will bring a common-sense approach to TCPA claims as they become more sensitized to litigation abuses, (3) courts will become more skeptical of certifying broad TCPA classes as they experience the difficulties of managing the individual consent issues in the context of massive class litigation, (4) new TCPA-compliant technologies will increase and (5) the FCC will address the confusion created by its existing rulings, possibly by clarifying or limiting the previous rulings that opened the TCPA floodgates.  If the FCC simply addresses various technologies on a case-by-case basis rather than clarifying the scope of the TCPA, Amy concludes that the “firestorm” of TCPA litigation “will not abate any time soon.”