In March 2018, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Federal Communications Commission's expanded auto dialer definition as too broad. The decision was seen as significant, plaintiff- and business-side attorneys agreed. Six months after the D.C.'s court's decision denying the FCC's broad auto dialer definition, however, California's Ninth Circuit adopted that same FCC definition.

The uncertainty in conflicting appellate court decisions and how the FCC may regulate has Telephone Consumer Protection Act (TCPA) attorneys on both sides cautious about a permanent slow down in filings. Such uncertainty will be challenged by plaintiffs, and the results will be watched closely to see if TCPA litigation will remain a financially worthwhile action for litigants to take, lawyers added.

Covington & Burling partner Yaron Dori said he's seen a tremendous boom in TCPA litigation in recent years. This is in part, he said, because the TCPA has been adapted to meet challenges posed by evolving technology, which has led to some ambiguity.

“Plaintiffs attorneys have used that opportunity to, I think, bring more lawsuits,” Dori said. “They use the ambiguities to create opportunity for them and their clients.”

To Sheppard, Mullin, Richter & Hampton partner Fred Puglisi, the TCPA has become a form of “legal extortion.”

“It's one of those statutes that I'm sure the legislation had good intentions but turned into legal extortion, for a lack of better words,” said Puglisi.

“What ends up happening is the vast majority [of filings] has no merit at all, it's very easy for the defendants to show that it has no merit,” Puglisi explained, but potential costly litigation fees makes settling with plaintiffs more cost-efficient.

But such TCPA actions may become a thing of the past, or at least cool off for the time being as plaintiffs' attorneys are unsure what the future holds for TCPA litigation and courts offer differing decisions.

“When there's disagreement in the courts as to what the rules are and whether the FCC rules past muster, attorneys will be more reticent,” said New York-based plaintiffs attorney Brian Bromberg.

In addition, Bromberg noted more businesses are including prior authorization for robo calling into their customers' contracts and such agreements would also lead to less TCPA filings.

“As a plaintiff attorney working on contingency, you don't want to run the risk of working and something bad happens in the courts and you don't get paid,” Bromberg said.

As lawyers look for uniformity in courtrooms, D.C.-based National Consumer Law Center and its senior counsel Margot Freeman Saunders are closely watching various TCPA-related matters before the FCC.

Although FCC chairman Ajit Pai was appointed by President Donald Trump, and some are anticipating the chairman will take a business-friendly approach in FCC interpretations, Saunders said that can't be automatically expected.

“[Pai] has repeatedly promised that the FCC will deal constructively and collectively with robocalls,” Saunders said.

As TCPA lawyers wait to see if TCPA filings become a thing of the past, Sheppard Mullin partner Puglisi said TCPA litigation will never entirely disappear. If the TCPA violation and potential judgment is great enough, a plaintiffs attorney will pursue the matter, he explained.

“I think you will continue to see cases filed, if the exposure someone is doing something wrong is significant. You have million-dollar settlements all the time, the potential fuels more actions.”