On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.
On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv). The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.
While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).
We’ve been watching closely as the various Circuit Courts of Appeals grapple with whether a Rule 68 offer of judgment to the named plaintiff in a putative class action can render the case moot even if the plaintiff rejects the offer and wants to keep litigating. As we noted in a previous post, the U.S. Supreme Court is set to resolve the issue soon.
On Friday August 7, 2015, the Judicial Panel on Multidistrict Litigation (the “Panel”) issued four decisions in pending TCPA cases: In re Holiday Cruise Line Tel. Consumer Prot. Act (TCPA) Litig., MDL No. 2637, 2015 U.S. Dist. LEXIS 103628 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re: Local Lighthouse Corp. Tel Consumer Prot. Act (TCPA) Litig., MDL No. 2644, 2015 US. Dist. LEXIS 103637 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re Portfolio Recovery Assoc., LLC, Tel. Consumer Prot. Act (TCPA) Litig., MDL 2295, 2015 U.S. Dist. LEXIS 103929 (J.P.M.L. Aug. 7, 2015) (granting motion to transfer for inclusion in coordinated or consolidated proceedings) and; In re Sirius XM Radio, Inc. Tel Consumer Prot. Act. (TCPA) Litig., MDL No. 2635, 2015 U.S. Dist. LEXIS 103629 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization). The four cases have relatively little in common aside from the fact that each involved a claim under the TCPA: In re Portfolio Recovery Assocs. involved alleged debt collection calls over VOIP lines, In re Sirius involved marketing calls that occurred after a free subscription to Sirius XM radio expired, In re Holiday Cruise Line involved unsolicited text messages, and In re Local Lighthouse Corp. involved marketing calls to both cellular and landline numbers. Despite the factual differences between the cases, there are two broad lessons from this group of decisions.
On August 14, 2015, CodeBroker, LLC (“CodeBroker”) filed a petition for review of the FCC’s July 10, 2015 Declaratory Ruling and Order with the United States Court of Appeals for the District of Columbia Circuit.
This petition was consolidated with the previous petitions filed by ACA International, PACE, and Sirius XM Radio, Inc. on August 17, 2015. CodeBroker challenges: (1) the FCC’s determination that prior express consent may be revoked through “any reasonable means,” (2) the FCC’s treatment of prior express written consent with “respect to its requirement that callers obtain new prior express written consent for each call or text message made to a wireless number, and (3) the FCC’s interpretation of the term “called party” as the current subscriber or customary user of the phone instead of the intended recipient of the call.” Id. at 2-3.
CodeBroker asks the DC Circuit to vacate the Order or hold unlawful: (1) the FCC’s treatment of text messages sent to reassigned wireless telephone numbers, (2) the FCC’s determination that prior express consent may be revoked by “any reasonable means,” (3) the FCC’s determination that callers “seek prior express written consent for each call or text message sent to a wireless number,” and (4) the FCC’s treatment of reassigned numbers and compel the FCC to define “called party” as the intended recipient of the call or text and establish a viable safe harbor for text messages sent to reassigned numbers. Id. at 3-4.
Stay tuned as we continue to provide updates on developments in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order.
TCPA Blog contributors Brad Andreozzi, Seamus Duffy, Laura Phillips and Michael Stortz recently discussed the July 10th Declaratory Ruling and Order in a Q&A with Practical Law that was published on August 13, 2015. The Q&A answered a series of questions about the key holdings of the Declaratory Ruling, implications for companies facing potential exposure under the statute, and strategies for defending putative class actions in light of recent developments from the FCC and anticipated rulings from the United States Supreme Court. Practical Law distributed the Q&A to its subscribers, posted the Q&A on its website, and will include an updated version of the Q&A in the Practical Law Journal this fall.
On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.
On August 12, 2015, ACA International (“ACA”), one of three petitioners in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, filed a statement of issues (D.C. Cir. filed Aug. 12, 2015) in its appeal of the FCC’s Order. ACA raises the following issues: (1) the FCC’s redefinition of an ATDS, (2) prior express consent, and (3) the FCC’s deviation from the statute’s intent.
In a recent Southern District of Texas decision, Cantu v. Platinum Mktg. Group, Case No. 1:14-CV-71, 2015 U.S. Dist. LEXIS 90824 (S.D. Tex. Jul. 13, 2015), plaintiff Hector Cantu brought suit against defendant Platinum Marketing Group LLC d/b/a/ DiabetesHelpNow.com, LLC (“Platinum”) for calls made to his cell phone in violation of the TCPA. In considering Cantu’s motion for entry of default judgment, the court concluded that it lacked personal jurisdiction over the defendant.