Telephone Consumer Protection Act (TCPA) litigation is continuously shaped by recent court decisions and opinions, specifically in light of ACA International v. Federal Communications Commission (FCC). Questions as to what constitutes an Automatic Telephone Dialing System (ATDS) have left practitioners and businesses in sheer confusion, making it a critical time for TCPA compliance.

The webinar, "TCPA Litigation in Light of ACA International: Strategies and a Practical Guide" hosted by The Knowledge Group, offered an in-depth analysis of the significant issues in TCPA litigation and best practices to mitigate risks. Some of the key points addressed included:

• Petition Process: Virtually every circuit now requires a party seeking to challenge a FCC rule, order or policy to file a Petition with the FCC and exhaust their administrative remedies. Once the Commission acts, one court of appeal will review the FCC order, and that decision will bind all other federal courts of appeal. The Petition process is important since no district court can invalidate any FCC rule, order or in some instances other policies.
• Proper Class: Technological and market changes, First Amendment issues, and draconian minimum damage recoveries not related to actual damages, should be raised as inter-related reasons to modify FCC policy. Specifically, Plaintiffs seeking to certify a fax class action, must be required to prove each and every element of their prima facia case, and when proving their own case, prove the case of each class member. If they cannot accomplish that requirement, it is not a proper class.
• The issue of efaxes: The FCC should reject its earlier 2015 WestFax order that treats efaxes as a conventional fax because receipt by a computer is not covered by the act and causes none of the harms that the statute was intended to prevent.

The last time a court of appeal considered the TCPA fax issue was 2003, based on 2000 technology. A lot has changed—especially the growth of the internet, and the virtual elimination of faxing as an important and growing form of communication. To view the webinar, visit: www.theknowledgegroup.org.