FCC Chairman Proposes to Clarify TCPA Rules at June Meeting

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FCC Chairman Tom Wheeler released a fact sheet and issued a blog post this week announcing that he had circulated a proposed order that would rule on the numerous petitions that companies have filed with the FCC seeking clarity on the TCPA rules. According to the Chairman, his proposal reflected in the draft order would “close loopholes and strengthen consumer protections already on the books.” The FCC is expected to vote on the Chairman’s proposal at its monthly meeting currently scheduled for June 18, 2015.

Although details have not been made public, the statements from Chairman Wheeler provide some insight as to what he has proposed:

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Court Clarifies Free Offers and Dual Purpose Calls

A recent decision from the Southern District of Alabama provides more clarity as to the treatment of “dual purpose” telephone calls to wireless numbers that offer free goods and services. The Federal Communications Commission already has explained that “offers for free goods and services that are part of an overall marketing campaign to sell property, goods, or services” are advertisements under the TCPA and FCC regulations. The FCC also has explained that informational calls that are motivated in part by the intent to sell property, goods, or services are “in most instances” advertisements under the TCPA. This is true whether call recipients are encouraged to purchase, rent, or invest in property, goods, or services during the call or in the future (“such as in response to a message that provides a toll-free number”). Report and Order, In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶¶ 139-142 (2003).

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Federal Court Denies Certification, Declines To Infer A Lack of Consent From A Lack Of Documentary Evidence Of Consent

The Middle District of Florida recently denied class certification because the plaintiff failed to prove that consent (or more to the point, an alleged lack of consent) could be established on a classwide basis. In doing so, it confirmed that class action plaintiffs have the burden of proving that issues are susceptible to classwide proof even though a defendant may bear the burden of proving or disproving some of those issues at trial. See Shamblin v. Obama for Am., No. 13-2428, 2015 U.S. Dist. LEXIS 54849 (M.D. Fla. Apr. 27, 2015).

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Supreme Court Grants Certiorari To Resolve Circuit Split As Second Circuit Holds That Offer Of Judgment Can Moot Named Plaintiffs’ Claims If Trial Court Enters Judgment

As we noted a few months ago, several pending Circuit appeals and a pending petition for certiorari to the United States Supreme Court foreshadowed that clarity might be coming to the question whether an offer of complete relief to a named plaintiff in a putative class action can moot the named plaintiff’s claim, and the related issue of whether named plaintiffs can continue to pursue claims on behalf of a putative class after their individual claims become moot. Last week the Second Circuit has provided a partial answer, and today the Supreme Court granted certiorari, which hopefully will put the issue to rest once and for all.

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