Answering the BIG Question: Did Marks Just Ruin the FCC’s TCPA Reform Efforts?

It has been an interesting time in TCPAland since ACA Int’l was decided in March. We’ve seen a number of decisions going different ways with respect to the continued viability of the 2003 and 2008 Predictive Dialer rulings. And while it was neat to keep score – and we did – it seemed like the current morass of ATDS rulings were mere holdover entertainment ahead of the real show– the FCC’s TCPA Omnibus II that will be unveiled soon (probably next month). That ruling, it seemed certain, would afford the TCPA a little ATDS bedrock and–at long last–end all the bickering in TCPAland.

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Following the Marks decision, however, complete and uniform deference to the FCC’s intensely-anticipated TCPA declaratory ruling is no longer a sure bet. Indeed, its a fantasy. That’s not to say courts should disregard the FCC’s new-and-more-conservative-than-ever TCPA ruling most observers expect, but Marks *cough* marks a major departure point for TCPA jurisprudence and one that is sure to have an impact long after the FCC has had its say.

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