b'For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.comCREDIT CARDS lect debt. The Fourth and the Ninth Circuits separatelyAppx. 604 (2019); Duguid v. Facebook, 926 F.3d 1146 considered arguments by defendants that this provision(9th Cir. 2019); Am. Assn of Political Consultants, Inc. v. renders the TCPA unconstitutional in its entirety. BothFCC, 923 F.3d 159 (4th Cir. 2019). On January 10, 2020, courts have held that the provision was unconstitution- the Supreme Court granted the United States petition al, finding that it was presumptively an unconstitutionalto review the TCPAs constitutionality and remedy ques-AUTO LOANSCONSUMER FINANCIAL &Telephone Consumer Protection Act content-based restriction on speech, which was nottions raised in Gallion and Duguid. TELEPHONE CONSUMER PROTECTION BUREAU PROTECTION ACT narrowly tailored to serve a compelling state interest.Ninth Circuit Holds Company Liable for Contractors Goodwin continued to actively monitor and analyze TCPA litigation over the past year.While courtsThe courts held that the exception ran counter to theRobocalls. In May, the Ninth Circuit reversed summary TCPAs stated purposepreventing unwanted inva- judgment, holding that there were material issues of continued to wrangle with defining injury and an automatic telephone dialing system (ATDS), brandsions of personal and residential privacybecausefact as to whether the defendant had ratified its debt new developments took hold as well, such as the Federal Communications Commissions (FCCs) call- unsolicited robocalls from the government are just ascollectors calling practices, and thereby created a blocking technology ruling.invasive as robocalls from private parties. Both circuitsprincipal-agent relationship with the debt collector and concluded that the TCPA provision is severable, strikingthe potential for TCPA liability. The plaintiff alleged that the offending section and allowing the remainder ofshe received calls from debt collectors to a phone MORTGAGESTUDENT LENDINGDEBT COLLECTIONthe statute to stand. Gallion v. United States, 772 Fed. KEY TRENDS on requiring providers to implement the SHAKEN/ number that she had not provided in connection with In 2019, the FCC issued a key ruling, promoting theSTIR authentication framework, which is caller-ID use of call-blocking technology by telephone servicetechnology that helps sniff outand blockspoofed providers. Courts also invalidated portions of the TCPAtelephone numbers. The ruling is significant, because on First Amendment grounds; continued to considerit may impact legitimate calls, such as calls from debtThe Continued Aftereffects of ACA International. ACA International v. FCC, decided in March 2018, was what conduct constitutes injury sufficient to satisfycollectors, and may also require legitimate callersa landmark TCPA ruling by the D.C. Circuit, in which the court found that the FCCs definition of an ATDS Article III standing, following the Supreme Courtsto take affirmative steps to ensure that calls are not blocked by the SHAKEN/STIR system. The ruling waswas overly broad and set aside the FCCs one call safe harbor as arbitrary and capricious. The court, FEDERAL COURTS OF2016 Spokeo v. Robins decision; and continued to APPEALS DATA SECURITY PAYDAY LENDINGthen enacted into law by the Pallone-Thune Telephonehowever, stopped short of defining ATDS or opining as to what a reasonable safe harbor provisiontackle what constitutes an ATDS under the TCPA inRobocall Abuse Criminal Enforcement and Deterrencemight be. the wake of the D.C. Circuits 2018 ACA InternationalAct (TRACED Act). The Act became effective January 1, v. FCC decision. The Supreme Court decided the2020. As Goodwin reported last year, several circuit courts weighed in after ACA International was decided, PDR Network LLC v. Carlton & Harris Chiropractic, Inc.Supreme Court Rules on FCCs Interpretation of theand 2019 was no different. The Ninth Circuit weighed in on the issuefollowing its precedent in Marks v. case, but stopped short of definitively clarifying theHobbs Act. In June, the Supreme Court decided PDRCrunch San Diego, LLC (904 F.3d 1041 (9th Cir. 2018))holding that a device that sent text messages to deference that courts owe to the FCCs interpretationNetwork LLC v. Carlton & Harris Chiropractic, Inc. At is- cell phones, which was used by Facebook as a security authentication measure, was an ATDS. The court of the TCPA.sue was the FCCs interpretation of the Hobbs Act and whether that interpretation is binding on federal courts.found that the device was an ATDS because it stored numbers to be automatically calledeven though 2019 HIGHLIGHTS The Supreme Court did not resolve that issue. Instead,Facebook texted the numbers in response to a users login attempt, and did not text for marketing it held that the deference due to the FCCs interpreta- purposes. Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019). Facebook has petitioned the Supreme Pallone-Thune TRACED Act Enacted After FCC Rul- tion depends on two preliminary questions, which theCourt for certiorari in the wake of that decision. The Sixth Circuit took a middle-ground approach on the ing. In June, the FCC issued a ruling authorizing voiceFourth Circuit did not consider: (1) whether the order is service providers to automatically enroll customers inATDS issue, affirming summary judgment that the plaintiff did not produce evidence showing that Trueb-programs to identify and block unwanted telephonea legislative rule or an interpretive rule which didlue used a device that could randomly or sequentially dial or text numbers, but stopped short of specif-calls. Rather than requiring customers to affirmative- not have the full force and effect of law; and (2) whetherically not addressing whether an ATDS needed to be able to generate random or sequential numbers to ly opt into call blocking programsas has been thethe defendant had prior and adequate opportunity caseit permits service providers to automaticallyto seek judicial review of the order. The Supreme Courtqualify as an ATDS. Gary v. Trueblue, Inc., (No. 18-2281), 2019 WL 5251261 (9th Cir. 2019).enroll customers in call blocking program by default,remanded the case to the Fourth Circuit to answerThe Seventh Circuit is also set to weigh in on the issue, in an appeal from a decision in which the North-requiring customers to opt out if they do not want tothose preliminary questions. PDR Network, LLC v. Carl- ern District of Illinois held that the ATDS definition does not cover devices that dial from preset lists. Oral participate. The FCC believes the ruling will increaseton & Harris Chiropactic, Inc., (No. 17-1705).Circuit Courts Invalidate Portions of the TCPA on Firstargument in that case took place on September 27, 2019, but the court has yet to issue its decision. consumer participation in such programs, reasoningGadelhak v. AT&T Services, Inc., (No. 19-1738) (7th Cir.).that consumers will not affirmatively opt out. It furtherAmendment Grounds. Pursuant to 47 U.S.C.227(b)permits service providers to offer white-list programs,(1)(A)(iii), which was added to the TCPA by amendmentThere is still no uniformity among district courts in applying the ATDS definition following ACA Internation-which only connect calls that appear on a consumersin 2015, the United States government is exempt fromal. This could well be an issue that will be teed up for the Supreme Courts review in the coming years.pre-approved list. The FCC has also sought commentthe TCPAs prohibition against using robocalls to col-36 37'