26 KEY TRENDS In the wake of the Supreme Court’s 2016 decision in Spokeo v. Robins, litigants and courts alike continued to struggle with whether TCPA plaintiffs have suffered sufficient injury to have Article III standing. Defendants in TCPA cases successfully advanced arguments that the cases were incompatible with class adjudication where named and class plaintiffs may have given varying levels of consent to be contacted or may have revoked such consent to varying degrees. Finally, the D.C. Circuit overturned an FCC interpretation of 47 U.S.C. § 227(b)(2)(D), concluding that the FCC does not have authority under the TCPA to mandate that senders of solicited fax advertisements include opt-out notices in their fax advertisements. 2017 HIGHLIGHTS Clarification of Distinction Between Advertising and Informational Calls. In January 2017, a ruling from a federal district court in California provided clarity on which pre-recorded calls are advertising (and therefore require prior express written consent from the consumer before being placed) and which are purely informational calls (requiring only prior express consent, which the plaintiff had provided when she gave her cellular telephone number to the defendant as the best way to contact her). The court held that a prerecorded call from a consumer’s insurance company, which stated that the borrower’s policy would be automatically renewed and directed the consumer to the company’s website, was purely informational. The court concluded that the call was not advertising despite the reference to the insurance company’s website and despite that the call was placed to retain customers. Smith v. Blue Shield of Calif., No. 8:16-cv-00108, Dkt. No. 73 (C.D. Cal. Jan. 13, 2017). Courts Continue to Develop Application of Spokeo to TCPA. After the decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), courts were initially split on whether a purely statutory violation of the TCPA, without evidence of any actual harm to the consumer, satisfied Article III’s standing requirement that the plaintiff have suffered an “injury in fact.” In 2017, though several courts held that a statutory violation of the TCPA, without more, does satisfy the concrete injury requirement for standing, courts continued to refine how Spokeo should apply to TCPA cases under various facts. Ninth Circuit Adopts Broad Interpretation of Spokeo and Article III Standing Requirement. In January, the Ninth Circuit ruled that a plaintiff, who had signed up for a gym membership but subsequently canceled his membership and later received two calls from the gym, had standing under Spokeo to bring a TCPA TELEPHONE CONSUMER PROTECTION ACT In 2017, Goodwin monitored litigation developments affecting the TCPA throughout the year. Of note this past year, court cases recognized the individual nature of TCPA claims in putative class actions and continued to address whether bare violations of the TCPA constitute injuries-in-fact.