On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.
In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient. See Pub. L. No. 109-21, 119 Stat. 359 (2005). The FCC has defined the “sender” of a fax for liability purposes as any “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10) (2019). The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax. See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).
Late last week, numerous trade associations and public policy institutions filed amicus briefs supporting the narrow interpretation of the ATDS definition for which Facebook and the United States had advocated in briefs filed the week before. The case, Facebook, Inc. v. Duguid, arises from an automated security-alert text message to an individual who had never consented to receive such messages. See Facebook Brief at 15. The amicus briefs seek to help the Supreme Court resolve the growing circuit split over what constitutes an ATDS.
The following amici (and others joining with them) filed briefs in support of Facebook: Lyft, Quicken Loans, Home Depot, Salesforce.com, Aetna, Midland Credit Management, Credit Union National Association, Portfolio Recovery Associates, the Retail Litigation Center, the Life Insurance Direct Marketing Association, the Washington Legal Foundation, the Professional Association for Customer Engagement, and the U.S. Chamber of Commerce. The briefs (and previous filings in the case) can be found here.
Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.
FDS Restaurant, Inc. v. All Plumbing, Inc., No. 16-CV-1009, 2020 WL 1465919 (D.C. Mar. 26, 2020)
In a recent TCPA junk-fax case, the District of Columbia Court of Appeals drew the intuitive conclusion that businesses do not incur TCPA liability whenever their products are advertised via fax. The proposition that strict vicarious liability does not apply to advertised businesses is a simple one, but—as the D.C. Court of Appeals noted—courts have diverged as to the proper standard to apply for assessing vicarious liability for faxes sent in violation of the TCPA. In FDS Restaurant, the D.C. Court of Appeals had to decide for itself which standard to apply in this context.
The Supreme Court announced today that it will hold oral argument via teleconference for Barr v. American Association of Political Consultants and a number of other cases that have come before it this term. The Barr case poses two questions about the TCPA: First, whether the TCPA’s exception for calls regarding “debt owed to or guaranteed by” the United States is an unconstitutional content-based restriction on speech; and second, if the government-debt exception is indeed unconstitutional, whether the proper remedy is simply to sever that exception, or instead to strike the statute’s restrictions on automated telephone equipment in their entirety. The Court’s willingness to conduct remote oral argument for Barr indicates a desire to decide the case before the end of the current term.
Oral argument for Barr is to be held at some point in May, depending on the availability of counsel. The Court plans to broadcast a live audio feed of the oral argument.
On March 30, 2020, the American Bankers Association (“ABA”) and several other associations of banks and credit unions (together, “petitioners”) effectively asked the FCC to exempt all COVID-related calls and texts to consumers from TCPA liability as communications “made for emergency purposes.” Petition for Expedited Declaratory Ruling, Certification, or Waiver of the American Bankers Association et al., CG Docket No. 02-278, at 4 (Mar. 30, 2020) [hereinafter “ABA Petition”].
The Eleventh Circuit last week issued a common-sense ruling vacating class certification in a TCPA case—an area of the law where common sense does not always prevail. In Cordoba v. DIRECTV, LLC, No. 19-12077 (11th Cir. Nov. 15, 2019), the named plaintiff claimed that DIRECTV violated the TCPA when Telecel, the company it had contracted with to provide telemarketing services, failed to maintain an internal “do-not-call list” of individuals who had requested not to receive telemarketing calls on behalf of DIRECTV. Cordoba sought to represent a class of all persons who had received more than one telemarketing call during the period of time that Telecel had failed to maintain a do-not-call list for DIRECTV. The district court certified the class, failing to consider that the class as defined would include many members—mostly members, potentially—who had never asked to be placed on the do-not-call list. Having never made this request, the Eleventh Circuit said, those members lacked standing because their injuries were not traceable to Telecel’s alleged failure to maintain the list. Furthermore, because distributing an award would require the district court to confirm whether a class member had a traceable injury, individualized inquiries predominated over common questions. The district court’s failure to consider these individualized questions of standing and predominance doomed its certification order.