Two Courts Address Level of Specificity Required to Allege ATDS Claim


Although, as we have previously covered, decisions from various courts have already established that a plaintiff must do more than simply allege that a TCPA defendant used an automatic telephone dialing system (“ATDS”) to make calls that allegedly violate the TCPA, two recent decisions help illustrate the level of specificity in pleading required to survive a motion to dismiss. Depending on the District Court, that level does not appear to be exceedingly high.

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Appeals From Declaratory Ruling Consolidated And Assigned To D.C. Circuit

As we previously noted, three petitions for review were filed in the immediate aftermath of the FCC’s Declaratory Ruling. On Friday, July 24, 2015, the Judicial Panel on Multidistrict Litigation issued a Consolidation Order that consolidated and randomly assigned those three appeals to the United States Court of Appeals for the D.C. Circuit.

Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling

As anticipated, additional challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order are being filed across the country (we reported earlier that ACA International first filed a petition for review on July 10, 2014). PACE (the Professional Association for Customer Engagement, Inc.) filed its petition for review with the United States Court of Appeals for the Seventh Circuit on July 14, 2015. See Prof’l Ass’n for Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. filed July 14, 2015). On the same day, Sirius (Sirius XM Radio, Inc.) filed a virtually identical petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Sirius XM Radio, Inc. v. FCC, No. 15-1218 (D.C. Cir. filed July 14, 2015). PACE and Sirius challenge the FCC’s “expan[sion] [of] the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and ‘to dial such nmbers.’”

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First Challenge to July 10, 2015 Declaratory Ruling Already Filed

While the July 10, 2015 Declaratory Ruling and Order (our summary of which can be found here) was released after the close of business on Friday, one petitioner has already filed a petition for review of the Declaratory Ruling: ACA International (the Association of Credit and Collection Professionals) (“ACA”).  ACA filed its petition for review with the United States Court of Appeals for the District of Columbia Circuit on July 10, and filed an amended petition on July 13. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 10, 2015).  ACA challenges the FCC’s “treatment of ‘capacity’ within the definition of an automatic telephone dialing system,” the FCC’s “treatment of predictive dialers,” and the FCC’s interpretation of the term “‘prior express consent’ (including its treatment of reassigned numbers.” Amended Petition for Review at 2-3, ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 13, 2015), Doc. No. 1562251. ACA asks the DC Circuit  to hold unlawful the FCC’s treatment of “capacity” and compel the FCC to “treat ‘capacity’ in a way that comports with a caller’s right of due process and free speech;” hold unlawful the FCC’s treatment of “predictive dialers” and compel the FCC to “treat them in a way that does not expand the statutory definition . . . beyond the definition that Congress enacted;” and hold unlawful the FCC’s treatment of “prior express consent, including the Commission’s treatment of reassigned numbers,” and compel the Commission to establish either a “viable safe harbor for autodialed ‘wrong number’ non-telemarketing calls to reassigned wireless numbers” or “define ‘called party’ as a call’s intended recipient.”  Id. at 4-5. 

What You Need to Know About the FCC’s July 10th Declaratory Ruling on the Telephone Consumer Protection Act (TCPA)

A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”).  This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes.  While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief.  Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest.  There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks.  Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling.  Requests may be lodged, however, to stay its enforcement pending review.

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Internet Association Asks FCC To Distinguish Internet Platforms From Their Users For TCPA Purposes

In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.

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FCC’s Enforcement Bureau Commends PayPal for Modifying its User Agreement

We previously advised that the FCC’s Enforcement Bureau, in an unusual move, on June 11 published a letter it sent to PayPal warning that PayPal’s proposed changes to its User Agreement that contained robocall contact provisions might violate the TCPA. These proposed revisions conveyed user consent for PayPal to contact its users via “autodialed or prerecorded calls and text messages … at any telephone number provided … or otherwise obtained” to notify consumers about their accounts, to troubleshoot problems, resolve disputes, collect debts, and poll for opinions, among other things. The Bureau’s letter highlighted concerns with the broad consent specified for the receipt of autodialed or prerecorded telemarketing messages and the apparent lack of notice as to a consumer’s right to refuse to provide consent to receive these types of calls.

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District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward

The District of South Carolina recently rejected the argument that TCPA claims must be dismissed if a plaintiff does not specify the telephone number that was allegedly called. See Williams v. Bank of America, No. 14-4809-RBH (D.S.C. June 19, 2015).

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