Recently, the Northern District of Illinois dismissed a TCPA putative class action without prejudice, finding that faxes inviting recipients to attend free continuing education veterinary seminars did not constitute advertisements on their face because they did not promote products or services and they were not sufficiently alleged to be a pretext for an underlying commercial purpose. Ambassador Animal Hosp., Ltd. v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021 WL 633358 (N.D. Ill. Feb. 18, 2021).
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).
A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).
In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.
Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.
As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.
The United States District Court for the District of Connecticut recently dealt another blow to serial TCPA plaintiff, Gorss Motels, Inc., granting summary judgment to the defendant in Gorss Motels, Inc. v. Lands’ End, Inc., No. 17-cv-00010, 2020 WL 264784 (D. Conn. Jan. 16, 2020). This is the latest in a series of adverse decisions—including from a Court of Appeal—suffered by Gorss Motels.
Just as political campaign season begins to heat up, the Fourth Circuit has delivered what must be an unsatisfying victory to a group of political consultants, pollsters, and organizations that had challenged the constitutionality of the TCPA on First Amendment grounds. Am. Ass’n of Political Consultants, Inc. v. FCC, No. 18-1588 (4th Cir. Apr. 24, 2019). Although the challenge had been brought by political groups, the Fourth Circuit’s decision has wide-ranging implications for organizations that collect federal debts. Indeed, the Fourth Circuit may have handed an unexpected gift to the plaintiffs’ bar. Continue reading
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