To Be or Not To Be An Autodialer? That is the TCPA Question

In “Telemarketers Celebrate Rare Regulatory Win” (April 2018), I discussed the D.C. Circuit Court of Appeals decision in ACA International v. FCC invalidating key parts of the Federal Communications Commission’s (“FCC”) 2015 Omnibus Order interpreting certain provisions of the Telephone Consumer Protection Act (“TCPA”), the federal statute governing telemarketing calls and texts using an Automatic Telephone Dialing System, or ATDS.  The aspect of the decision having potentially the greatest impact on the TCPA as a telemarketing enforcement tool was its voiding of the FCC’s interpretation of the statute’s definition of ATDS.  As discussed below, since ACA other circuits have weighed in, reaching opposite conclusions engendering further confusion as the FCC presently considers public comments it has received to help it wrestle with how to reinterpret ATDS in light of the D.C. Circuit’s ruling. Continue with this post…

FTC Gambles and Loses in DIRECTV Negative Option Case

Continuity marketing, featuring free trials with a negative option binding consumers to recurring charges until they cancel, has been a prominent target of Federal Trade Commission enforcement for years. These actions typically begin with a temporary restraining order and asset freeze and end in a settlement, with little if any litigation in between. As a result, very little case law has developed to define the line between lawful and unlawful continuity marketing, the analysis of which centers on the adequacy of disclosure of the negative option. Continue with this post…

California to the Country on Data Privacy: We’re with Europe

In Europe to America on Data Privacy: We Rule, You Follow (June, 2018), I wrote that Europe’s sweeping new privacy law, the General Data Protection Regulation (“GDPR”), could become “the de facto data privacy standard in the United States, which lacks a national consumer privacy law.” While that still could prove true, it has new competition from – where else – California, so often America’s trendsetter. Continue with this post…

Supreme Court to E-Retailers: You’re Also Tax Collectors

The life of an e-retailer – especially one of small or medium size – became much more complicated and costly on June 21. On that day, the U.S. Supreme court, in South Dakota v. Wayfair, Inc., ruled that sellers online are now legally obligated to collect sales taxes on transactions anywhere and everywhere they occur, whether or not they have a physical presence. Continue with this post…

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