TCPA Update: The Year in Review and What Lies Ahead

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One year has passed since the implementation of the Federal Communication Commission’s revised Telephone Consumer Protection Act (TCPA) rules. To mark this anniversary, Manatt, Phelps & Phillips LLP and Bloomberg BNA invite you to join us for a complimentary webinar that will address important legal and case law developments, highlight enforcement trends and discuss solutions that will help you remain ahead of the curve in meeting TCPA challenges. Marc Roth and Donna Wilson, co-chairs of Manatt’s TCPA Compliance and Class Action Defense Group, and moderator Katie Johnson, legal editor on Bloomberg BNA’s Privacy & Security Law Report, will survey important and trending TCPA developments over the past year and provide practical guidance for the future.

Topics to be covered:

• FCC Activity – There are currently dozens of petitions regarding the TCPA awaiting disposition at the FCC. How the agency decides will have a significant impact on future litigation and enforcement proceedings. Although the agency has responded to a handful of petitions, the backlog is staggering, causing one FCC commissioner to publicly express concern with companies asking the government to bless their business decisions in order to avoid litigation.
• Explosion of TCPA Class Actions – More TCPA class actions were filed in 2013 than in any other year. But, surprisingly, most have not alleged violations of the 2013 FCC rules. Why is this, and what are the hot topics being addressed by the courts?
• Vicarious Liability – Companies that hire vendors and others to communicate with prospects on their behalf cannot always hide their heads in the sand to avoid liability for the bad acts of their agents. The FCC has opined that companies may be vicariously liable under common law for the acts of others if they direct and control such acts. Yet some courts have allowed corporate parents to escape liability for franchisees’ bad acts.
• “Capacity” – The TCPA “word of the year.” Circuit courts are split on whether the TCPA applies to a device that is not used to place autodialed calls but has the “capacity” or ability to do so. The FCC also has several petitions before it seeking clarification on this issue.
• Liability Exposure and Settlements – Two national banks recently agreed to pay $34 million and $75 million, respectively, to settle TCPA cases, which calls into question whether reasonable settlement ceilings still exist.
• Revoking Consent – Can consumers revoke their consent to receive calls and text messages? If so, can revocation be oral, or must it be in writing?

These and other important topics, such as whether a consumer’s voluntary provision of his or her mobile number satisfies the TCPA’s “express consent” requirement and whether service providers can be held liable under the TCPA, will be discussed.

Educational Objectives:
Given the significant financial risks for violating the TCPA, as evidenced by recent record-breaking settlements in the tens of millions, companies in all industries that communicate with consumers and businesses via mobile phone, text message, facsimile or pre-recorded messages must stay on top of important trends. Participants will:
• understand recent developments in TCPA legislation;
• learn tips to remain compliant with the TCPA’s regulations; and
• avoid pitfalls that await the unwary.

Who would benefit most from attending this program?
This program is designed for counsel and risk management executives in all industries who are responsible for legal and regulatory compliance. No industry is exempt from the TCPA’s coverage – it applies to companies in all business categories, including banking, insurance, travel, health-care, professional sports, entertainment, consumer products and even business-to-business communications. Counsel advising these companies as well as privacy and data security practitioners would all benefit from attending.




Marc Roth is a partner in the Advertising, Marketing & Media Division of Manatt, Phelps & Phillips LLP and co-chair of the TCPA Compliance and Class Action Defense Group, resident in the firm's New York office. He is a highly accomplished regulatory and transactional attorney with more than 20 years of experience in consumer advertising and marketing law. Mr. Roth has extensive experience advising clients on federal and state telemarketing laws. During his tenure with the Federal Trade Commission, he investigated and prosecuted abusers of the Telemarketing Sales Rule (TSR) and the FTC Act. Now, Mr. Roth counsels clients on how to develop and manage telemarketing programs that comply with the TSR, the Telephone Consumer Protection Act (TCPA) and applicable state laws. In regard to the TCPA, he advises clients on how to obtain proper consent to send text messages, place calls with pre-recorded messages and comply with do not call and call abandonment rules. Clients benefit from his insight into how the government views this highly sensitive industry. Mr. Roth is a frequent speaker at industry conferences and has authored articles on legal and business developments affecting the telemarketing industry. He serves on the advisory board of Bloomberg BNA's Social Media Law & Policy Report.

Mr. Roth earned a J.D. from Syracuse University, an M.A. of Public Administration from the Maxwell School of Citizenship and Public Affairs and a B.A. from Hobart College. He is admitted to practice in New York.


Donna Wilson is a partner in the Litigation Division in Manatt's Los Angeles office and co-chair of the firm's TCPA Compliance and Class Action Defense Group and its Privacy Group. Ms. Wilson's practice focuses on consumer class and individual actions and counseling, financial services and data security and privacy, government enforcement actions and other complex business litigation and related counseling. Ms. Wilson has defended class and individual actions alleging violations of consumer protection laws as well as alleged statutory and common law consumer privacy violations.

Ms. Wilson earned a J.D. from the University of Virginia, where she was inducted into the Order of the Coif and was a member of the managing board of the Virginia Law Review, and a B.A. from The George Washington University. She is admitted to practice in California and the District of Columbia as well as before the Supreme Court of California, the U.S. Court of Appeals for the Third Circuit, the U.S. Court of Appeals for the Fourth Circuit and the U.S. District Courts for the Southern, Eastern, Central and Northern Districts of California.


Katie Johnson is a legal editor for Bloomberg BNA's Privacy & Security Law Report. Prior to joining Bloomberg BNA, she was a law clerk to the Honorable Dennis J. Smith at the Fairfax Circuit Court in Fairfax, Virginia. She writes on a wide range of privacy, data security and data protection issues including significant TCPA case rulings and settlements.