Wow. Incredibly well-reasoned and I am sure will be quoted in other Act 22 appeals going forward. One would hope that the City Solicitors will reconsider their position, but we all know they won't.

McKesson comes to the Supremes on a rather unique procedural posture: cross-motions for summary judgment that were cross-appealed. Cutting the gristle away from the meat, the issue boils down to whether the FCC’s AmeriFactors ruling, which was (allegedly) promulgated pursuant to Hobbs Act authority, has the force of law, thus requiring the District Court to follow it.

Long story short, the AmeriFactors ruling says that subscribers to e-fax services cannot sue for faxes under the TCPA, because an electronic fax service, which simply takes the fax and pops it into an email box, is not a “telephone facsimile machine” under the TCPA. And because there’s no way to tell an electronic fax line from a physical one, the Ninth Circuit affirmed the District Court’s holding that there was “no viable methodology for distinguishing class members who had received faxes on a stand-alone fax machine and those who had received them through an online fax service,” rendering the class unascertainable. For what it’s worth, I have my own opinions on these points, but they’re irrelevant for our purposes here.

You will recall that, this past term, the Supreme Court did away with the Chevron two-step in Loper Bright, and replaced it with only one question: what is the best reading of the statute? I already addressed the implications that Loper Bright had for the Hobbs Act and the previous PDR Network decision in my previous post. In short, the question unanswered by Loper Bright, and the question the Supreme Court will answer here, is this: ought Hobbs Act deference be treated any different than Chevron deference? In my personal opinion, the Supreme Court seems poised to overturn Hobbs Act deference as well, as the Hobbs Act two-step is just as unworkable in practice, if not more so, than the fundamentally flawed Chevron two-step.

So why does this all matter? Well, under the Hobbs Act, the circuit courts of appeal are the exclusive means that one has to challenge the FCC’s regulatory rulemaking on a question of statutory interpretation, and there are strict time limits for doing so. In other words, in light of a Hobbs Act-promulgated FCC regulation, the district court has its hands tied: it is completely barred from even conducting a statutory analysis; the only review must come from the circuit courts of appeal. Robbing district courts from the ability to conduct statutory interpretation and instead putting it in the hands of the administrative state is a recipe for disaster even worse than Chevron because it gives the administrative state the power to make effectively unreviewable law: for example, if a statute stated “a person has been aggrieved if they have suffered ‘A,’ ‘B,’ or ‘C,’” an agency like XYZ could promulgate a Hobbs Act rule stating that a plaintiff must suffer “A,” “B” and “C” to recover, even though that reading is at odds with the statutory text, and the district court would be powerless to read the statute as written by Congress.

In my view, if the Supreme Court does away with the Hobbs Act two-step in this case, it will ultimately be, on balance, a win for consumers.

Option 1: Supreme Court rules for McLaughlin and overturns Hobbs Act deference - If this happens, and I think this is the most likely outcome, the case will go back down to the District Court, which will now be permitted to apply traditional tools of statutory construction and interpretation to ask, “what is the best reading of the statute?” The District Court may ultimately conclude, using the tools outlined in Scalia and Garner, that the word “machine” in “telephone facsimile machine” applies equally to traditional fax machines and e-fax machines. If that happens, the District Court will likely re-certify the class. But the District Court may review the FCC’s reasoning in AmeriFactors, find that it comports with traditional tools of statutory construction, and again deny class certification.

Option 2: Supreme Court rules for McKesson and keeps Hobbs Act deference - If this happens, the class will remain de-certified because AmeriFactors renders it unascertainable. Nothing changes, and we are at the status quo post-Chevron with respect to Hobbs Act deference: district courts can interpret statutes unless the agency promulgates a regulation under the Hobbs Act that has the force and effect of law, in which case the Hobbs Act regs will continue to govern.

What other Hobbs Act TCPA rulings might be affected by this case? Well, the one that most immediately comes to mind is whether or not cell phones are eligible for registration on the Do Not Call Registry. Another, related one, is whether a text message is a “call” under the TCPA. And a final class of regulations that comes to mind are the panoply of FCC regs related to pre-records, ATDS, and consent including, most likely, the new one-to-one consent rule. This is not to say that any of the holdings in those rulings will go away if the Supreme Court kicks the Hobbs Act to the curb. Rather, district courts will be tasked with the traditional task of statutory interpretation. In other words, in the event that a defendant, for example, argues that a cell phone cannot be interpreted as “residential” under the TCPA, the district court will look to the statute and decide if a cell phone is “residential” or not using traditional tools of interpretation.

It remains to be seen what the Supreme Court does in this case, but I’m about 2/5 odds on the Supreme Court getting rid of the Hobbs Act two-step and putting statutory interpretation back in the hands of courts, where it belongs as an initial matter.

In theory, telecoms are supposed to draft and submit a robocall mitigation report for inclusion on the Robocall Mitigation Database.

What passes for a “robocall mitigation report” submitted by some of these telecoms and approved by the FCC is downright laughable.

Here’s an excerpt of a gem of a so-called “robocall mitigation program” of one telecom caught red-handed terminating illegal pre-record traffic:

We are working since last two years but don’t have any robo calls from our platform. We further, have an agreement with our clients to curb this robo calls.

Here’s the entirety of another’s self-described mitigation “program:”

These telecoms need to get shut down.

Documents located here.

The numbers here are truly eye-watering and show that the real profiteering here is from Karl Meyers of Stevens and Lee.

All over what is $7,500 of maximum statutory damages. But who cares when it’s not your money, right?

Link is here.

Hopefully this helps anyone getting a parking ticket from the vultures at the PPA.

That’s the post.

In 2007, Congress passed the Do-Not-Call Registry Fee Extension Act, which provides for periodic fee increases for telemarketers to access the Do Not Call Registry, critically indexed to inflation. The FTC just raised fees for access, to take effect next month.

But nobody is talking about the need for a TCPA Damages Extension Act, a proposal I just thought of today, which would allow for periodic increases to the statutory damages available to Plaintiffs under the TCPA. The critical need for such an increase is obvious. Five hundred dollars in 1991 is worth at least $1,168.42 today, if not more (that is, if you don’t trust the government’s official numbers). Illegal telemarketing is as rampant as ever. And if telemarketers need to pay costs to access the DNC Registry indexed to inflation, it just makes sense that they should also pay the same damages when they break it.

Writ your Congressmen. Let them know about this problem. Make this an amendment to the Do Not Disturb Act. Something needs to be don.

Fax is still very much a thing, at least here in the great Commonwealth of Pennsylvania. The Rules require me to send a copy of all documents filed in state court pleadings either:

1. By postal mail. (This takes forever and has no tracking.)

2. Through the attorney’s mailbox in the Prothonotary’s office. (Do they even have mailboxes for attorneys in courthouses in California?)

3. Or by fax. (Clearly the superior option. No spam filters, no lack of a reply, and instant confirmation that transmission was successful.)

Obviously, its code for “ideal for businesses to generate fictitious leads using realistic-looking geographically targeted consent information with a residential IP address.”

Manufactured TCPA consent has been the bane of my existence as a TCPA plaintiff’s attorney and TCPA plaintiff for the longest time. Attempts by tele-scum to do so range from downright laughable, for example by providing an opt-in dated after the call took place, to highly-sophisticated, often in some variation of the callback proxy network scam. Detecting a lead submitted with a fraudulent residential callback proxy network is relatively easy if one knows what to look for. But convincing TCPA defence attorneys that their client is a bad actor and that the lead gen they hired is manufacturing consent using these proxies is an exercise in futility, particularly as most people (TCPA attorneys included) have no clue what a residential callback proxy even is. They think that if a lead appears to come from a residential IP address in the same geographic area as the Plaintiff, it must be legitimate and it must be the Plaintiff’s IP address.

How wrong these technologically illiterate defence attorneys are.

This is the first part of a multi-part series on exposing manufactured TCPA consent. That being said, in this article, I will outline what a residential callback proxy network is and how it differs from other VPN and proxy services.

Proxies/VPNs Generally

Webster’s defines a “proxy” as “authority or power to act for another.” A proxy is just that: it gives an internet user to route their traffic through a different IP address and computer system than their own. Everyone’s internet connection has a public IP address that is used to identify it on the internet. This is akin to a house number: just like one resides at 123 Main Street in Pennsylvania, a computer might reside at an IP address of (for example) 71.23.24.56. If I were to drop off a letter at the local postbox, it would have a Pennsylvania postal mark. So too when I visit a website. Because of the way the internet works, a website visitor necessarily provides their IP address to every website they visit. Each IP address, akin to a postal mark, is associated with a specific geographical area, such as a major city, as well as the internet service provider to which it was assigned. And, given the right set of circumstances and resources, anyone can track down an IP address to its source, such as my office, through a subpoena to the ISP.

That’s where proxies, colloquially known as VPNs, or Virtual Private Networks, come in. VPNs, at their most fundamental level, permit an internet user to proxy traffic through another location and IP address. Going back to the mailing analogy for a moment, if I wanted to mail a letter but wanted make it appear as if I was located in Los Angeles, I could send my letter inside a bigger envelope to my friend in Los Angeles. He could then take the letter, drop it in his local postbox, and it would get a Los Angeles postal mark. So too with a VPN or proxy. Using a proxy, an internet user sends all their internet traffic in a secure “tunnel” to another IP address, where it is then introduced into the wider internet. In so doing, any traffic that I originate from my IP address of 71.23.24.56 will look like it’s instead coming from (for example) 72.98.76.54. It’s worth noting that the process also works in reverse: the website to which I am connecting will send any response back to 72.98.76.54, which will then “tunnel” it back to me at 71.23.24.56.

Why People Use Proxies

Proxies have a myriad of uses, both good and bad. Most every major company equips its work from home workforce with a VPN for accessing company resources on the go, thereby avoiding needing to expose its internal servers and services to the public internet. VPNs are a powerful tool for bypassing censorship and accessing geographically-restricted content. Using a VPN, for example, a Chinese person can read Western media that criticizes the Chinese Communist Party. And, unfortunately, VPNs are used to commit crime and fraud, including fraudulent TCPA opt ins. Most people are under the impression that VPNs also provide a degree of anonymity, protect their information from “hackers on public Wi-Fi,” and completely hide the fact to websites and the general public that a VPN is being used. They’re not. These people and companies advertising the same are delusional, as this excellent article explains in greater detail.

Identifying VPN Use: The IP Address Space

As most people know, their internet service is provided through an internet service provider, or ISP. For traditional land-based internet services provided to residences, these are companies like Comcast, Verizon, or Charter. These companies also have business divisions that also service businesses. For wireless services, a user’s mobile internet service is provided through one of the “big three:” AT&T, T-Mobile, or Verizon. Then there’s data centre internet services providers that don’t service the general public. Most people have not heard of these companies, which include Level3, Cogent, and Zayo.

Recall that each IP address is associated with a specific internet service provider, geographical region, and network. As a result, it is relatively trivial to identify that a person is using a VPN because (typically, but not always), the IP address will appear to originate from a large data centre and will typically have an IP address serviced by one of the major data centre service providers, like Level3. Similarly, a website knows that you are on a phone when it detects that you are accessing it from an IP address associated with AT&T-Mobile.

Large VPN companies like NordVPN, Private Internet Access, or ExpressVPN (which happen to be owned by the same scummy parent company and malware distributor Kape Technologies), will set up servers in data centres around the world, obtain a handful of IP addresses for each, and then proxy millions of users through such IP addresses. As a result, such IP addresses are quickly flagged both for abuse and as used as part of a VPN network. Thus, the fact that one is using a VPN is readily apparent, as is any related blocking associated with it. I personally have seen lists of purported “opt-ins” from scummy tele-scammer Fortune 500 companies which all originated from the same data centre IP address. Disproving that consent is a walk in the park. But these scammers have wised up in their game recently by fabricating consent using residential callback proxies.

Residential Callback Proxies “Solve” The VPN Identification Problem

At their most fundamental level, residential callback proxy networks solve the problem of “dirty” IP addresses that are flagged as originating from large data centres and as part of a VPN network because the “tunnel” exits at a residential network, not at a large data centre. Go back to the mailing analogy for a minute. I could also send my letter to a company in Los Angeles that specializes in simply dropping letters in the postbox, but if I did that, I would get a machine-generated postal mark. But I can also ask my friend to go to the post office, buy a stamp, and have them stamp the postal mark at the post office, making it significantly more difficult to detect what I am doing. As I explain above, it’s relatively simple to disprove 5,000 opt ins from the same data centre IP address in California when the people purportedly submitting this info are located all over the country. And it’s relatively trivial for lead fraud detection systems to mark these IPs as fraudulent and simply block them.

Generally speaking, just as the ad displayed above speaks to, a residential callback proxy network, in addition to using residential IP addresses, also employs an IP “rotation” system, thus ensuring that one consistently gets a new residential IP address in the same selected geographical area every time they visit a website. And because they do so, detecting that a particular IP address is associated with a residential callback proxy is quite difficult indeed; there are not millions of data points and users to collect information about possible fraudulent activity on as in a data centre IP.

Thus, the importance of the residential callback proxy network in the TCPA consent fabrication scam is this: it is trivial to disprove an opt-in that originates from a server farm for multiple reasons alluded to previously. It is far more difficult to prove that the opt-in originated from a residential callback proxy network. And most TCPA attorneys (and courts) don’t bat another eye at a list of 5,000 opt ins from unique residential IP addresses located in the same geographical area as the opt in. Thus, overseas lead generators can self-fabricate a website visit that appears to originate from a residential IP address in the same geographical area as the person called, thus giving them consent that appears to come from the victim, and making it quite hard for victims of this fraud to disprove such allegations.

The next part of this series will take a deep dive into the shady underworld of residential proxies, how they operate, and how they obtain vast numbers of IP addressing resources. Part three will address how illegal telemarketers use them to manufacture consent and in fact use such fraud as the basis for such spurious allegations as the hiring of confederates and as ammunition for motions to compel arbitration. Stay tuned.

It read:

TCPAWORLD AFTER DARK: I have the greatest assistant in the world

Selah drove 11 hours to bring me cookies today. That's it. That's the post.

What is he hiding? One can only speculate.

Edit: I have received some interesting new information that those were some damn good cookies. Troutman must be wanting to keep this kickass bakery a secret.

The dissent in Corner Post accurately evaluated the consequences of the decision in light of Loper Bright, but it unsatisfyingly arrived at the wrong conclusion. Justice Jackson wrote:

While this concern highlights the profound impact of the decisions, it also underscores the necessity for rigorous oversight of the administrative state’s interpretations of statutes that conflict with the plain statutory text. The dissent’s perspective inherently reinforces the need for transparency and accountability in government actions, principles that are foundational to our constitutional form of government and the separation of powers.

A very good lawyer also recently corrected my initial thoughts about the scope of the Corner Post decision I wrote about yesterday. By the very text of the opinion, it seems not to apply to the Hobbs Act and keeps the 60-day limit on Hobbs Act challenges intact. This distinction is crucial for consumers as it preserves the expedited timeline for telemarketers to challenge specific agency orders under the Hobbs Act while allowing consumers to take advantage of extended review periods for other administrative actions under the APA, like the disastrous PDR Network decision.

For years, the executive has over-wielded its authority to direct agencies to enforce rules in a sweeping and often arbitrary manner, untethered to the statutory text and driven by the shifting winds of political power. One need only to look at conflicting circuit court decisions in interpreting the FCC’s wishy-washy interpretation of the TCPA’s statutory ATDS definition to arrive at that result. I feel one of the many reasons that plaintiffs have been losing so many ATDS cases recently is because of the FCC’s bizarre interpretation of a plainly-written statutory definition, causing courts to over-correct and hold that equipment is an ATDS only if it randomly or sequentially generates telephone numbers themselves.

In short, executive agencies’ indiscriminate and uninformed interpretations of clear statutory text have allowed challengers to deceptively argue that the statutory text is actually narrower than it is, representing a loss for consumers. Loper Bright and Corner Post put a stop to that and reinforced the judiciary’s mandate to engage in an informed intellectual analysis of the statute at issue. By opening the floodgates to challenge potentially anti-consumer regulations, consumers can now advocate for their rights more effectively by reference to the plain statutory text as those ordinary terms were understood by the general public at the time they were adopted. Regulations and interpretations that may have been implemented without sufficient consideration of the consumer impact Congress intended to remedy when it drafted the statute can be revisited and revised, fostering a regulatory environment that prioritizes consumer welfare.

Consumers stand to benefit immensely from this shift. No longer will they be subjected to the arbitrary enforcement of regulations that serve political agendas rather than public interests. Instead, they will enjoy greater protection from unjust rules and regulations by tethering interpretations to statutory text, ensuring that executive agencies are always held to account. This change not only challenges the deep state but also empowers consumers, ensuring that statutes serve the public interest as Congress intended. As we move forward, this newfound ability to scrutinize and challenge administrative regulations, including anti-consumer FCC interpretations at odds with the statutory text, promises to enhance the integrity and responsiveness of our governmental institutions.

“Two roads diverged in a yellow wood, . . . I took the one less traveled by, and that has made all the difference.”

The Supreme Court’s decision today in Corner Post Inc. v. Board of Governors of the Federal Reserve System marks a pivotal moment for administrative law and its application to the TCPA. The ruling has far-reaching implications for how businesses and consumers interact with federal regulations and the timeframe within which these interactions can be legally contested.

The Court’s Decision

Corner Post, Inc., a truck stop that opened in 2018, challenged Regulation II of the Federal Reserve, which sets interchange fees for debit card transactions (the so-called Durbin Amendment). The regulation was enacted in 2011, but Corner Post only felt its impact when it started operations in 2018. The company joined a lawsuit in 2021, arguing that the fees it was being charged were higher than what the statute permits. The primary legal question was whether the six-year statute of limitations under the APA started when the regulation was enacted or when Corner Post first suffered harm.

The Supreme Court decided that an APA claim accrues when the plaintiff is injured by the final agency action, not when the regulation is enacted. This ruling reversed the Eighth Circuit’s decision, which had dismissed Corner Post’s suit as time-barred.

The Hobbs Act

The Hobbs Act mandates a strict 60-day window to petition for review of final agency orders of the FCC. Typically, in TCPA cases, telemarketers challenge pro-consumer interpretations of statutes promulgated by the FCC. Plaintiffs usually argue that the telemarketer they are suing forfeited their right to challenge interpretations if they do so more than 60 days after the interpretation became final. Plaintiffs usually win on that point. Now, with the Supreme Court’s decision in Corner Post, the Supreme Court has held that the statute of limitations for challenging agency actions, at least under the APA, starts when harm accrues, often when the business is sued, as opposed to when the pro-consumer rule is promulgated, potentially undermining established consumer protections.

Implications for the TCPA

More Leverage for Telemarketers: The ruling allows businesses to challenge administrative regulations long after their enactment, as long as they can show recent harm that falls within the established statute of limitations. In practical terms, it is likely that businesses will champion this decision and telemarketers will exploit it to challenge the FCC’s interpretations of the TCPA under the Hobbs Act, particularly because they can now allege a recent harm: the Supreme Court’s pro-consumer decision in Loper Bright. See my analysis of that case here. This change extends the potential statute of limitations period, as companies might only start their challenges when they experience direct impact, often coinciding with lawsuits against them. Ultimately, Corner Post is likely to prompt telemarketers to adopt the new argument that the Hobbs Act’s statute of limitations begins to run only when they have been harmed, that is, when they have been sued for illegal telemarketing.

Also More Leverage for Consumers: The ruling also might allow consumers to challenge administrative regulations long after their enactment. The above arguments cut both ways, also permitting consumers to mount new challenges to anti-consumer FCC regulations, such as the disastrous Broadnet ruling. This potential actualizes a silver lining amidst concerns raised by the Corner Post decision.

Impact of Loper Bright: One must read the decision in Corner Post in harmony with the Supreme Court’s decision in Loper Bright, which signaled a triumph of statutory construction and a return to analyzing statutory terms in light of their fixed, original public meaning at the time they were adopted. Might Loper Bright constitute new “harm,” reopening the statute of limitations for every agency decision ever promulgated under the APA? Only time will tell. In this regard, Corner Post might signal a blessing and a curse: the decision in Loper Bright might constitute a concrete “harm,” effectively reopening the statute of limitations for review of every single agency action under the APA. Both consumers and illegal telemarketers seeking to challenge agency decisions would be wise to use Corner Post to bring new challenges to FCC regulations. For my part, I believe that their best argument is that that some action, such as the Court’s decision in Loper Bright, just triggered new harm that gives them at least 60 days to mount a challenge to the FCC’s orders under the Hobbs Act.

The Court’s decision today in Corner Post represents a crossroads for the TCPA and administrative law, especially when viewed in light of Loper Bright. By extending the timeframe for challenging federal regulations, the decision empowers both businesses and consumers alike seeking to challenge the deep state, but the decision poses new challenges for consumers who will likely now need to face previously time-barred Hobbs Act challenges. Ultimately, the decision underscores the importance of staying vigilant and proactive in the face of regulatory and legal changes.

The Supreme Court’s Decision in Loper Bright

The Loper Bright decision dismantles so-called Chevron deference, a faulty legal doctrine established in the 1984 Supreme Court case Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837. Under Chevron, courts deferred to federal agencies' interpretations of “ambiguous” statutes as long as those interpretations were “reasonable.” This deference often allowed agencies to exert considerable influence over the implementation and enforcement of laws, sometimes in ways that deviated from the statute's plain language and Congressional intent.

In Loper Bright, the Supreme Court emphasized that judicial interpretation must be grounded in the statutory text itself, rather than deferring to an agency's potentially biased or improper interpretation. This decision is a victory for all Americans. The Supreme Court's decision in Loper Bright reinforces the principle of separation of powers by reasserting the judiciary's role in interpreting laws written by Congress, rather than deferring to executive agencies, whose role is to ensure that the laws Congress wrote, interpreted by the judiciary, are “faithfully executed.” As Justice Thomas wrote in his concurrence, Chevron composed the separation of powers by curbing the judicial power afforded to courts while simultaneously expanding executive power beyond constitutional limits.

Faithful execution of the laws can only occur through an informed reading of the statutory text. By rejecting Chevron, the Court today has ensured that judges, not bureaucrats, are responsible for determining the meaning of statutes like the TCPA passed by Congress, thereby maintaining the balance of power among the branches of government. This aligns with the foundational principle articulated in Marbury v. Madison, 5 U.S. 137 (1803), and cited by the Court, where Chief Justice John Marshall famously declared, "It is emphatically the province and duty of the judicial department to say what the law is." By adhering to this principle, the Loper Bright decision safeguards the judiciary's role as the ultimate arbiter of statutory interpretation, upholding the constitutional structure designed to prevent any one branch from gaining undue authority.

Loper Bright’s Implications for the TCPA

The TCPA shines as a model of clarity, as the Fourth Circuit and numerous other Courts have declared. The plain language of the TCPA prohibits certain communications without prior express written consent from the recipient. However, over the years, the Federal Communications Commission (FCC) has issued various rulings that have at times muddied the clear waters of the statute, presenting loopholes for telemarketers to exploit to consumers’ detriment.

The Supreme Court's decision in Loper Bright has significant implications for the Court's previous ruling in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. In PDR Network, the Court faced the question of whether a district court must accept the FCC's interpretation of the TCPA when it has not been challenged in a timely manner under the Hobbs Act. The decision left open important questions about the extent to which lower courts must defer to agency interpretations of statutes, reflecting ongoing tensions regarding Chevron deference. With Loper Bright overruling Chevron, the ambiguity surrounding PDR Network is substantially resolved. Lower courts are no longer bound to defer to the FCC's interpretations if they conflict with the plain language of the TCPA. These interpretations often, but not always, run contrary to the plain language of the statute and the TCPA’s consumer protection goals. District courts now have the authority to independently interpret the TCPA, even in the face of prior FCC rulings, provided they adhere to the statute's text.

This shift emphasizes the judiciary's role in statutory interpretation and could lead to more consistent and predictable enforcement of the TCPA. For instance, courts can now scrutinize FCC rulings such as the tremendously anti-consumer Broadnet Ruling and evaluate their alignment with the TCPA's clear prohibitions without feeling compelled to defer to the agency's anti-consumer interpretations. The Broadnet Ruling, exempted callers from TCPA liability when they were calling in furtherance of “official government business,” an interpretation of a term that is found nowhere in the statutory text. This ruling effectively allowed politicians and their associates to bombard citizens with unsolicited calls and texts under the guise of “government business.” Loper Bright enhances the judicial oversight of agency action, reinforcing the separation of powers by ensuring that courts remain the ultimate interpreters of the law, as affirmed in Marbury. The Loper Bright decision thus not only clarifies the boundaries of agency deference but also strengthens the judicial branch's role in maintaining the integrity of statutory law.

The Supreme Court's ruling in Loper Bright is a significant step toward ensuring that the TCPA is enforced as Congress intended. By overruling Chevron , the Court has reaffirmed the primacy of statutory text and opened the door for increased accountability under the TCPA. This decision heralds a bright future for consumers, as it strengthens the legal framework protecting them from unsolicited calls and texts. The TCPA, bolstered by this return to textualism, stands as a robust safeguard for consumer privacy in the modern era.

This case revolves around a defendant's attempt to bifurcate, or separate, discovery related to arbitration from the broader discovery process. Defendants in TCPA cases frequently attempt to compel arbitration by asserting that the plaintiff agreed to arbitration terms via a website visit during which their phone number was allegedly submitted. This tactic hinges on two dubious assertions, not only that the consumer visited the website as an initial matter and submitted their information, but also that they consented to an arbitration agreement, often buried in fine print hidden in webpages contained in other links on the page. In this way, motions to compel arbitration in TCPA cases are vastly different from motions to compel arbitration in other consumer contexts, where consumers typically do not deny signing up for an app or submitting an order, for example, subjecting them to arbitration. In most TCPA cases, by contrast, the plaintiff disputes arbitrability as a threshold matter, denying that they ever agreed to arbitrate because they never visited the website alleged.

The court's memorandum provided a thorough analysis of why the court exercised its compétence de la compétence in denying a joint motion to bifurcate arbitration and merits discovery, which boiled down to two main reasons:

Flawed Premises: The court acknowledged that the Defendant's argument was built on the faulty premise that the Plaintiff actually visited its website and submitted their information. In reality, lead generation fraud is rampant and recipients of illegal calls and messages typically do not engage with these websites, making the assertion of consent through website interaction fundamentally flawed.

Efficiency Concerns: Separating arbitration discovery from the broader discovery process is inefficient, since the defendant is stuck in litigation or arbitration necessitating merits discovery either way. The court highlighted that such bifurcation could lead to unnecessary complications and delays, rather than streamlining the proceedings as Rule 1 requires. By rejecting the bifurcation, the court reinforced the necessity of addressing all discovery issues concurrently. This ensures that all relevant information is considered, promoting a fair and thorough adjudication.

For plaintiffs in TCPA cases, this ruling is a significant victory. It affirms that defendants cannot easily evade thorough discovery processes by pushing for arbitration based on tenuous claims of website visits and consent. The decision underscores the importance of holding defendants accountable through comprehensive discovery, ensuring that the merits of each case are fully examined. The denial of the motion to bifurcate arbitration discovery sends a clear message to defendants in TCPA cases: manipulating discovery processes based on unfounded premises will not be tolerated. This ruling is a crucial reminder that thorough and fair discovery is essential in upholding the rights of plaintiffs and ensuring justice in the fight against illegal telemarketing practices. For those advocating for plaintiffs, the court's stance is a resounding affirmation: don't even think about agreeing to bifurcate discovery on such shaky grounds.

Understanding Zulu Time

Zulu Time, also known as Coordinated Universal Time (UTC), is the time standard used across the world. Unlike local time zones, which vary based on geographic location and date, Zulu Time remains constant, providing a reliable reference point for global coordination. The aviation, military, and scientific communities widely use this time standard precisely because of its consistency and clarity.

Addressing Common Concerns

Zulu Time is Not Confusing

Yes, initially, converting from local time to Zulu Time can be confusing, especially for those unfamiliar with it. However, this confusion is temporary. Once familiarized, the process becomes second nature, similar to converting between local time zones. Moreover, numerous online tools and apps can effortlessly convert Zulu Time to local time, mitigating this initial hurdle.

Zulu Time Can Become Familiar, Especially To Attorneys

Attorneys, by nature, are adept at understanding and adapting to new systems. Given the cross-country nature of a TCPA legal practice, becoming conversant with Zulu Time is a minor adjustment that can yield significant long-term benefits. In fact, Zulu Time is all the more important in the TCPA context because most telephone records are natively in Zulu Time.

Zulu Time is Not Complex; It Actually Eliminates Complexity

Scheduling in Zulu Time eliminates the complexity of accounting for Daylight Saving Time changes and regional variations. By using a single, constant time reference, I can avoid the pitfalls of miscalculations and miscommunications that arise from time zone differences.

Why Zulu Time is Superior

1. Universal Consistency:

Zulu Time provides a single, unchanging reference point. This consistency is invaluable when scheduling across multiple time zones. It eliminates the need to account for varying local time conventions and daylight saving adjustments, ensuring that all parties are on the same page.

2. Reduction of Errors:

When everyone uses a different local time, the chances of errors increase. By standardizing on Zulu Time, I minimize the risk of miscommunications and scheduling mishaps, making it easier to organize meetings accurately.

3. Professional Alignment:

Many global industries, including aviation, military, and IT, already use Zulu Time for coordination. As mentioned above, calling records reflecting illegal telemarketing conduct in TCPA cases also often use Zulu Time. By adopting this standard in my TCPA legal practice, I align myself with best practices in the telecommunications industry, enhancing my professionalism and efficiency.

4. Simplified Scheduling:

Using Zulu Time, I can create a straightforward, unified scheduling system. Tools like online calendars and scheduling software often have built-in support for Zulu Time, making it easier to coordinate across different regions. At my desk, I have a clock set to Zulu Time. Whenever I travel, I wear a watch set to Zulu Time. This simplifies scheduling and eliminates the need for me to keep track of appearances in various time zones, especially when traveling. Why, just last week, I was in the Pacific Time zone and had three engagements I was able to effectively manage in three other time zones because of my use of Zulu Time.

5. Future-Proofing:

As the scope of illegal telemarketing conduct and discovery related to it becomes increasingly globalized, including by US-based companies utilizing “boiler room” call centre operations in India and Pakistan, the ability to operate seamlessly across time zones will only grow in importance. Adopting Zulu Time prepares me for the future, ensuring that I remain at the forefront of developments in the TCPA space.

While the initial transition to Zulu Time may present a learning curve, the long-term benefits far outweigh the temporary inconvenience. By adopting Zulu Time, I embrace a standard that promotes clarity, consistency, and professionalism in my scheduling practices. As a universal time standard, Zulu time presents many advantages, not just for the sake of ease in coordination but as a step towards a more efficient and error-free practice better aligned with the realities of TCPA litigation.

In a recent turn of events, former President Trump has been convicted of a felony, a development that carries significant legal repercussions, including a prohibition on firearm possession under 18 U.S.C. § 922(g). This statute categorically bars felons from possessing firearms, reflecting a broader federal mandate to enhance public safety by preventing individuals with serious criminal records from accessing weapons.

Under federal law, "possession" of a firearm encompasses both actual and constructive possession. Actual possession occurs when an individual has direct physical control over a firearm, such as holding it in their hand or having it on their person. Constructive possession, on the other hand, is defined more broadly. It refers to situations where an individual may not physically hold the firearm but has the power and intention to exercise control over it. This can include having firearms stored in one’s home or vehicle, in their spouse’s nightstand while sharing the same bed, etc., as long as the individual has knowledge of and access to them.

Given these definitions, the presence of Secret Service agents around Trump, who are armed for his protection, raises questions about whether this constitutes a violation of 18 U.S.C. § 922(g). Legal interpretations generally suggest that mere proximity to firearms held by others, such as law enforcement officers or Secret Service agents, does not automatically translate to possession. For a violation to occur, there must be evidence that Trump has control over or access to these weapons.

In practical terms, as long as Trump does not have direct control or the ability to access and exercise dominion over the firearms carried by his Secret Service detail, he likely will not be deemed in violation of the statute. The Secret Service’s role is to provide protection, and their firearms are not intended to be under the control or direction of the protectee. Therefore, under normal circumstances, the presence of armed Secret Service agents is unlikely to constitute a violation of Trump’s firearm prohibition under 18 U.S.C. § 922(g).

However, apart from a possible but unlikely pardon, there exists a potential pathway for Trump to regain his firearm rights under the provisions of 18 U.S.C. § 925(c). This statute allows individuals subject to firearm prohibitions to apply for relief by petitioning the Attorney General. The relief can be granted if the applicant demonstrates that they are not likely to act “in a manner dangerous to public safety” and that granting relief “would not be contrary to the public interest.”

Despite this legal avenue, Trump faces a formidable obstacle rooted in the landmark Supreme Court case of U.S. v. Bean, 537 U.S. 71 (2002). The case centered on the statutory requirement that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must “act” on a petition for relief before an individual can seek judicial review of the petition. In the early 1990s, Congress defunded the ATF's ability to process applications under Section 925(c), effectively putting a halt to any action on such petitions. In Bean, the Supreme Court unanimously held that without the ATF's action on a petition, courts lack the authority to review the application or provide relief. This decision underscored the critical procedural step that must be met: the ATF's consideration of the petition is a necessary precursor to any judicial intervention. And, because Congress has refused to fund ATF’s consideration of such petitions since the 1990s, the ATF’s hands are tied.

Given the current legislative and administrative landscape, where the ATF has not processed these applications for decades, Trump’s ability to lift the firearm prohibition under 18 U.S.C. § 925(c) remains highly improbable. The Supreme Court's ruling in Bean effectively locks the door to judicial review until such time as the ATF acts, leaving individuals like Trump in a legal limbo where the relief mechanism exists in theory but is inaccessible in practice.

As it stands, the firearm prohibition imposed by 18 U.S.C. § 922(g) will likely remain in place for Trump, highlighting a significant intersection of legislative action, judicial interpretation, and administrative policy in the realm of firearm regulations.

Judge Wolson’s full 18-page opinion is here. Incredibly well reasoned, but I might be just a little biased. Leave it to Wolson to craft a great opinion, even quoting Blondie, “When it comes to robocalls, you can only call those who, like Blondie, have said, ‘Call me. Call me on the line.’”

There’s a number of other great quotable notables in this one:

“What’s left is to ensure that Rep. Bradford is a person under the statute. He is.”

“In his individual capacity, there’s little question that Rep. Bradford is a “person” under the TCPA because he’s an individual. He argues otherwise, but his arguments all focus on the idea that the definition of “person” does not extend to a sovereign. He’s right, but the argument misses the point.”

“Rep. Bradford violated Mr. Perrong’s clearly established rights.”

“The right that Section 227(b)(1)(A)(iii) creates is clearly established. The statutory text is not ambiguous.”

“The TCPA applies to “individuals,” of which Rep. Bradford is obviously one. Although the FCC has concluded that the TCPA does not apply to a state government, an individual legislator is not the government, nor does he act for the government when he exercises his discretion and makes individual decisions to publicize events to his constituents.”

“In this case, that written word is the TCPA, and it could not be clearer that it applies to all calls that any individual makes using a prerecorded voice, including an individual serving as a state legislator.”

To add insult to injury and really rub salt into the wound, the taxpayers of Pennsylvania were on the hook for over $30,000 in legal fees defending this case over maximum liability of $7,500. They spent 4x more than max statutory damages in defending a state representative for actions taken in his individual capacity and still lost. Talk about a bad day!

Today the Second Circuit issued their published opinion in Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. The long and short of this tremendous loss for consumers is that, like in the Third, Eighth, and Ninth circuits, an ATDS (or rather confusingly, in the Second Circuit’s shorthand, an ATSD) must randomly or sequentially generate telephone numbers, not just randomly pick numbers from a list. Essentially, nothing is an ATDS now. Scalia is surely rolling in his grave as a result of the contorted interpretation of the statutory text in the face of the plain technical language the Second Circuit undertook.

Largely the same reasoning as for my loss at the Third Circuit, which I wrote about here.

The interesting thing about this nugget of a case is that we have a dissent by Judge Nardacci, sitting by designation. The dissent is incredibly well-reasoned. In sum, she felt the majority got it wrong for five reasons:

• First, the majority reads “random or sequential number generator,” a term with a precise technical meaning, to mean “random or sequential telephone number generator,” contrary to the Supreme Court’s interpretation of technical terms in Van Buren v. United States, 593 U.S. 374, 388 (2021).

• Second, the reading renders the use of storage in the statute superfluous. If an ATDS must produce a telephone number randomly or sequentially, why also permit a plaintiff to prove ATDS usage by demonstrating storage?

• Third, the reading renders the prior express written consent requirement superfluous. It’s impossible to get prior express written consent to randomly generate a telephone number.

• Fourth, Facebook’s Footnote 7 supports the conclusion that an ATDS can store telephone numbers, a la the second reason, supra. Footnote 7, when viewed in light of the “storage” language, articulated a system that stored telephone numbers randomly or sequentially and thus was an ATDS. The dicta merely addressed the other half of the coin not before the Court.

• Fifth, interpreting “random or sequential number generator” as an ordinary language term, and not a technical term, when interpreting a technical statute, simply makes no sense and fails to account for the differences in trigger-based and non trigger-based dialers.

Could it be that Judge Nardacci is outlining a five-point framework for getting this anti-consumer decision reversed en banc or having cert granted? Only time will tell. But for now, the best path forward for consumers seems to be Rep. Pallone’s Do Not Disturb Act which clearly rectifies this ridiculous contortion of statutory text. In the meanwhile, I might read Reading Law again over the weekend. There’s simply no excuse for sloppy statutory interpretation. The Second Circuit would be wise to do likewise.

Still processing this and my next steps, but needed to get this article out there.

The Third Circuit’s decision today shows why Representative Pallone’s Do Not Disturb Act, HR 7116 must pass. The revised ATDS definition there avoids the very issue here by defining a “Robocall” as a call or text message sent using equipment that makes a call to stored telephone numbers.

TCPATalk: talk to your representatives about this bill and let’s work on getting some critical mass behind it for its passage. Pallone was able to get the TCPA passed in ‘91, he has what it takes to get it revised!

One of the fundamental powers of P is that I am a pilot. It’s just one of the many Ps that sets Perrong Law apart. So of course I took a break for half of the day to take a plane up to see the eclipse right over the zone of totality, and I was so happy to have a very special client of the firm join me.

It’s one thing to see the eclipse from the ground, but it’s quite another to see it from the air and poke through the clouds to get a better view. And seeing some parts of the ground dark and others lit up is truly surreal.

Until 2045, TCPATalk.

Well, Rojas recently claimed victory against a political party called the First Party for Bolingbrook claiming that automated political texts he received from them were sent using an ATDS. The Court’s opinion is quite well reasoned.

The First Party for Bolingbrook case involved political text messages which Defendants argued were personalized using the Plaintiff’s name, were sent from a local phone number, and did not “produce a telephone number using a random or sequential number generator.” In its opinion, the Court denied the motion and ruled that an ATDS not only includes equipment which randomly or sequentially generates telephone numbers itself, but also includes “autodialers that capture not just a random phone number but also the name of the account holder and use a local phone number as the source.”

Here’s the best part through: the Court also held that personalizing a text message is not sufficient to overcome ATDS allegations. It said the fact the messages included the “Plaintiff’s name” was insufficient to defeat other well-pled allegations supporting ATDS use, including the fact that the calls otherwise had generic content, which were sufficient to push the “TCPA claim into the realm of plausibility.” The Court also cited favourably to language on the website of the telephone system’s manufacturer, which included “references to the use of, or capacity to use, an ATDS, thus making it plausible that an ATDS system was used.” 

Rojas has wasted no time in benefitting from his win in this case. Just yesterday, he sued failed presidential candidate Nikki Haley for, you guessed it, illegal robotexts. Complaint is here. We’ll continue to talk about this as the case develops, TCPATalk.