Defendant Debunks Plaintiffs’ Reliance On FCC Order That Never Became Effective

A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.

In Green v. Navient Solutions, LLC, No. 1:17-CV-1453-VEH, 2018 WL 6303775, at *4 (N.D. Ala. Nov. 29, 2018), the plaintiff alleged the defendant continually autodialed her cell phone using an audibly artificial or prerecorded voice, even after her repeated requests to stop. The defendant sought summary judgment, arguing its calls did not violate and were exempt from the TCPA under 47 U.S.C. § 227(b)(1)(A)(iii) because they were made solely to collect a student loan debt that was guaranteed against default by the United States Department of Education (“ED”). Id. at *2, *4, *5 (citations omitted). The plaintiff pointed to the August 2016 Order, and two cases relying on it, to assert that callers seeking to collect a debt guaranteed by the United States only have consent to call under the TCPA until such consent is revoked. Id. at *6 (citations omitted). This Court sided with the defendant, finding the calls were exempt from the TCPA’s prior consent requirement based on the plain language of the statute and the August 2016 Order did not alter this conclusion because it “never became effective.” Id. at *5. Concluding the August 2016 Order was the plaintiff’s sole basis for her argument, the Court granted the defendant’s motion and dismissed the case with prejudice. Id. at *7 (citation omitted) (footnote omitted).

In Gaza v. Navient Solutions, LLC, No. 8:18-cv-1049-MSS-SPF, 2019 WL 645390, at *1 (M.D. Fla. Jan. 23, 2019), the plaintiff had obtained two federal student loans, where the promissory note specifically provided that the debt was owed to the ED and that the educational institution, the ED, and their respective agents and contractors were permitted to call the plaintiff’s cell phone using autodialing equipment to collect overdue debt. Upon receiving multiple autodialed calls, the plaintiff claimed that even if the calls were permitted under the parties’ agreement, this aspect was voided once the plaintiff gave written notice expressly withdrawing his prior consent to receive such automated debt collection calls. Id. at *1, *2 (citations omitted). Similar to Green, the defendant moved for summary judgment on the plaintiff’s TCPA claim and argued its calls were exempt from TCPA requirements per 47 U.S.C. § 227(b)(1)(A)(iii). Id. at *2 (citations omitted). The Gaza Court relied heavily on the decision and reasoning in Green, finding the defendant was entitled to summary judgment for the same reasons. Id. at *2-3.

Conflicting Opinions Regarding the Validity of the FCC’s Pre-2015 ATDS Rulings

As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading   »

Court Denies Class Certification in Favor of Fitness Club: Plaintiff Failed to Show Commonality in Her Claim Theory and Applicable Consumer Contracts

The U.S. District Court for the Southern District of Florida recently issued two opinions in one case—Powell v. YouFit Health Clubs, LLC—that highlight the hurdles that plaintiffs can face in demonstrating typicality, ascertainability, and predominance when TCPA claims purportedly arise from consumer contracts.

In Powell v. YouFit Health Clubs, LLC, No. 17-62328, 2019 WL 926131 (S.D. Fla. Jan. 14, 2019), Traci Powell alleged that YouFit Health Clubs had violated the TCPA by sending “dual purpose text messages.” Plaintiff claimed that she was a former member of YouFit and that, after she cancelled her membership and paid her outstanding balance, she received two text messages that stated, in relevant part, “YOUFIT BALANCE FORGIVENESS: Get 1 year for $99 . . . to clear your past due balance.” She claimed that the texts had falsely stated that consumers had balances due on their accounts and had been sent without their consent. Continue reading   »

Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case

The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading   »

E.D. Pa. Court Dismisses Case, Finding That Fax Was Not An Advertisement

The Eastern District of Pennsylvania recently granted a motion to dismiss in a putative TCPA class action because the plaintiff failed to plausibly allege that the fax at issue constituted an unsolicited advertisement. Mauthe v. Spreemo, Inc., No. 18-CV-1902, 2019 WL 342715 (E.D. Pa. Jan. 28, 2019). The outcome hinged on the specific content of the fax at issue. Continue reading   »

Defendant in Marks v. Crunch San Diego, LLC Abandons Appeal

As we previously reported here, last fall the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) purported to expand the definition of an automatic telephone dialing system (“ATDS”) by holding that an ATDS is any “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” (emphasis added). Continue reading   »

Comment Cycle Begins for the FCC’s Proposed Amendment to Truth in Caller ID Rules

Yesterday, the FCC’s adopted Proposed Rulemaking (“NPRM”) to amend its Truth in Caller ID Rules was published in the Federal Register, triggering the commenting period deadlines. We previously compared the adopted NPRM with the draft document here and provided an overview of the proposed key provisions here. Comments on this NPRM are due by Wednesday, April 3, 2019, and reply comments are due by Friday, May 3, 2019. Commenters should follow the filing instructions provided in paragraph 40 of the NPRM. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.

An Important Class Issue the High Court Left Unresolved

TCPA Blog contributors Mike Daly, Matt Fedor and Andy Van Houter authored “An Important Class Issue the High Court Left Unresolved” for Law360.

In its ruling in Campbell-Ewald Co. v. Gomez, the Supreme Court found that an unaccepted offer of judgment made under Federal Rule 68 does not moot a plaintiff’s claim. But the Court expressly left open the possibility that actually tendering funds to an individual plaintiff could moot the claims. Two circuit courts, however, have recently found that a tender cannot moot the claims, with rulings in Fulton Dental LLC. v. Bisco Inc. and Radha Geismann, M.D. PC v. ZocDoc Inc. Continue reading   »

FCC First Report on Illegal Robocalls

On February 14, 2019, the FCC’s Consumer and Governmental Affairs Bureau released its first report on illegal robocalls (“the Robocall Report”) to address the “onslaught of unwanted calls that has led a lot of consumers to stop answering the phone altogether.” This report is compiled based on data points from more than forty comments submitted by voice service providers, trade associations, analytics companies, and consumers. The Robocall Report provided summary analysis on the following issues:

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FCC Adopted Proposed Amendment to Truth in Caller ID Rules

Since Chairman Ajit Pai took office, combatting illegal robocalls and malicious spoofing has become the FCC’s top consumer protection priority. In anticipation of yesterday’s Open Commission Meeting, Chairman Pai issued another press release on Wednesday, calling for “a robust caller authentication system to combat illegal caller ID spoofing” and criticizing carriers that lacked commitment to deploy the SHAKEN/STIR framework by the end of 2019. Between Chairman Pai’s 2018 demands that the FCC make real progress in call authentication and yesterday’s Open Meeting to vote on its draft Proposed Rulemaking to amend existing Truth in Caller ID Rules, Chairman Pai solicited details from several large telecommunications carriers about their caller ID authentication plans. These carriers’ submissions are available here.
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