A bunch of folks have pointed out to me recently that it feels like the TCPAWorld is starting to evolve extremely quickly again. For a few months there it was pretty quiet and the only real battle brewing was whether fn7 was a thing or not.
So real quick, here are the top 5 most important stories right now in the TCPAWorld:
5. Berman vs Freedom Financial: As I have been reporting–and providing video content discussing (See here) –the Ninth Circuit’s new ruling in Berman is a critical decision that appears to change (or at least clarify) the rules around using webform disclosures. If you use a website to capture arbitration provisions or express consent you need to be paying attention to this case.
4. Javier vs. Active Prospect: Another remarkable Ninth Circuit opinion, Javier recognizes that the use of Active Prospect’s wonderful TCPA compliance product TrustedForm may constitute wire tapping under California law. It cannot be deployed without consent. You NEED to be following this case if you rely on session replay technology to prove TCPA consent.
3. Panzarella vs. Navient: The most unexpected development in ATDS jurisprudence since the Omnibus. The Third Circuit held that the “capacity” of a system doesn’t really matter--only the use of ATDS functionalities triggers the statute. But the real impact of the holding may be its remarkably broad interpretation of the “equipment” to be analyzed to determine whether an ATDS is in use to begin with.
2. The FTC’s New NPRM Requiring Telemarketers to Hold Records: this impacts every direct-to-consumer marketer and call center making outbound calls for marketing purposes. Soon every record of every such call–including consent records, call recordings, and calling data–made by these companies will need to be preserved for five long years. Failure to comply will, itself, be an actionable TSR violation. Feels terribly over burdensome on small business and unconstitutional. Deadline to comment is next Monday June 27, 2022!
1. Of course the BIGGEST S OF ALL RIGHT NOW is the launch of the Deserve to Win podcast featuring the TCPAWorld team. In our First Episode we break down Berman, the FTC’s new NPRM and interview our SPECIAL GUEST Anthony Paronich (the Wolf!). You can’t miss this incredible [VIDEO] podcast:
Our second episode–breaking down Panzarella and all things ATDS–will drop next Tuesday, June 28, 2022.
© 2022 Troutman FirmNational Law Review, Volume XII, Number 171