On November 21, 2022, the Federal Communications Commission (FCC) released a declaratory ruling and order finding that "ringless voicemails" (i.e., voicemails delivered without the recipient's phone first ringing) are "calls" subject to 47 U.S.C. § 227(b)(1)(A)(iii). In doing so, the FCC rejected the argument that ringless voicemails should be excluded from Telephone Consumer Protection Act (TCPA) recasting, as they do not "pass through consumers' phone lines." The FCC's decision confirms that any company utilizing ringless voicemails to contact consumers should first obtain each recipient's prior express consent as part of ensuring TCPA compliance.
A notable part of the FCC's ruling is the conclusion that "consumers experience an intrusion on their time and their privacy by being forced to spend time reviewing unwanted messages in order to delete them." This finding appears to acknowledge that, as is the case with most TCPA cases, a technical violation of the TCPA alone is insufficient to establish liability. Rather, a claimant must suffer a harm contemplated by Congress in enacting the TCPA, such as invasion of privacy or annoyance resulting from the call(s).
Depending on the facts, Defendants may be able to create strong Article III standing defenses to both liability and class certification.
Day Pitney Press Release
Day Pitney Alert
Florida Partner Gary S. Betensky has been reappointed to the Palm Beach County Environmental Control Hearing Board for a second three-year term and will continue to serve as chair.
Day Pitney Advisory
Day Pitney Press Release
Day Pitney West Palm Beach Trusts and Estates Partner Tasha Dickinson was a featured guest on ESPN's West Palm Beach Tonight's Business Development Board of Palm Beach County's Business of the Month podcast.
On March 21, Day Pitney Counsel Ashley Picker Dubin was featured on an episode of The TechnoCat Live with Host Cat Casey at Legalweek's LegalTech conference.
Day Pitney Partner Michael Fitzpatrick has joined the Product Liability Advisory Council's (PLAC) Future Leaders Program.
Day Pitney Partners Gretchen Blauvelt-Marquez, Michael Fitzpatrick, James Leva, Nicole Magdiziak and Thomas O'Mullane's promotion to partnership and Partner Todd Terhune's arrival to the firm were featured in the New Jersey Law Journal's New Partners Yearbook 2023.
The arrival of Daniel Diaz Leyva and Amanda G. Gomez was featured in Florida Bar News' On the Move column.