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2020 U. Ill. L. Rev. Online 1 (2020)

handle is hein.journals/uilro2020 and id is 1 raw text is: THE SEVENTH CIRCUIT'S TCPA INSURANCE QUANDARY Timothy P. Law * I. INTRODUCTION The Telephone Consumer Protection Act (TCPA) makes it unlawful to send unsolicited advertisements via fax, and perhaps via text,1 in specified cir- cumstances.2 The purpose of the statute is to protect residential telephone sub- scriber privacy rights by restricting certain commercial solicitation and advertis- ing uses of the telephone and related telecommunications equipment.3 The TCPA guards against invasions of consumer privacy.4 TCPA claims may be covered by various types of insurance policies, in- cluding general liability insurance, professional liability insurance, and directors and officers liability insurance. With regard to the advertising and personal in- jury coverage in general liability insurance policies, there are two lines of prec- edent nationwide: one considering publication language,5 and another consid- ering making known language.6 * Timothy P. Law is a partner in the Philadelphia office of Reed Smith, LLP, where he practices insur- ance recovery litigation. 1. In 2012, the FCC took the position that text messages were the same as phone calls and text message broadcast systems were the same as automated telephone dialing systems (ATDS). In effect, the FCC said text messages sent by an ATDS would be covered under the TCPA effective Oct. 16, 2013. 2. See 47 U.S.C. § 227(b) (2018). 3. H.R. REP. No. 102-317, at 5 (1991); see also S. REP. No. 102-178, at 1 (1991) (The purposes of the bill are to protect the privacy interests of residential telephone subscribers.). 4. In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14018 (2003). See Matthew S. DeLuca, The Hunt for Privacy Harms After Spokeo, 86 FORDHAM L. REv. 2439, 2447 (2018) (Privacy statutes tend to be scattered and of limited scope. The small handful of federal statutes targets a range of specific privacy concerns and includes . . . the Telephone Consumer Protection Act.). 5. See Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 548 (7th Cir. 2009) (considering the publication language: oral or written publication of material that violates a person's right of privacy.) 6. See Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 634 (4th Cir. 2005) (con- sidering the making-known language: making known to any person or organization written or spoken material that violates a person's right of privacy). 1

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