Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”
The Eastern District of Michigan recently rejected an expansive interpretation of “sender” liability for unsolicited fax advertisements alleged to violate the TCPA, ruling that the mere inclusion of a company’s products on fax advertisements sent by a third party is not enough, standing alone, to saddle the company with liability for sending the faxes. Rather, to be liable for the faxes, the company must have taken affirmative steps to advertise its products through the faxes. This common-sense ruling, which further aligns Sixth and Seventh Circuit case law on this important issue, should provide ammunition for companies defending TCPA claims based on faxes sent by others in the distribution chain without the authorization or approval of the defendant. The Court also issued another in the litany of recent decisions confirming the limits on personal jurisdiction over foreign corporations. Continue reading
The Eastern District of Michigan recently dismissed a TCPA claim with prejudice after finding that the single fax at issue did not constitute an advertisement. See Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., No. 16-13777, 2017 U.S. Dist. LEXIS 28439 (E.D. Mich. Mar. 1, 2017). In doing so, it reaffirmed the Sixth Circuit’s position that, in deciding whether a fax is an advertisement, courts should not look beyond the four corners of the document and should ask whether it “‘promote[s] goods or services to be bought or sold’” and “‘ha[s] profit as an aim.’” Id. at *4 (citation omitted). Continue reading
On remand from the Third Circuit, the Eastern District of Pennsylvania recently reaffirmed its entry of summary judgment in favor of Yahoo!, holding once again that the company’s email-to-text alert system did not qualify as an automatic telephone dialing system (“ATDS”). Specifically, the court found that “present capacity” was the appropriate standard and declined to apply the “potential capacity” test that a narrow majority of the FCC announced in its July 2015 Declaratory Ruling & Order (“2015 Ruling”). See Dominguez v. Yahoo!, Inc., No. 13-1887, 2017 U.S. Dist. LEXIS 11346, at *7 (E.D. Pa. Jan. 27, 2017); Rules & Regulations Implementing Tel. Consumer Protection Act of 1991, 30 FCC Rcd. 7961 (2015). Continue reading
On October 13, 2016, counsel for class action plaintiffs (“Plaintiff Petitioners”) in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, filed a notice of supplemental authority with the United States Court of Appeals for the D.C. Circuit, arguing that the court’s recent decision in PHH Corp. v. CFPB, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), supports their arguments that the FCC’s October 2014 Anda Order (the “Anda Order”) “constitutes an impermissible retroactive legislative or adjudicatory rule” and violates separation of powers principles. Continue reading
In TCPA Blog’s latest column for Law360, Michael Daly, Justin Kay and Victoria Andrews addressed the issue of an alleged injury’s traceability to an alleged TCPA violation, which was recently highlighted in Romero v. Dep’t Stores Nat’l Bank and Ewing v. SQM US Inc. The United States District Court of the Southern District of California dismissed both cases based on a lack of constitutional standing because the alleged injuries could not be specifically traced back to the use of an Automatic Telephone Dialing System (“ATDS”). The decisions explained that, if the alleged injury would have been the same had the calls been dialed manually, then it could not be traced to use of an ATDS:
The court reasoned that “Mr. Ewing would have been no better off had Defendants dialed his number manually” since “[h]e would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion,” and cited McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) for the proposition that “‘[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.’” Id. at 5:4-12. Because the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA,” he lacked “standing to make a claim for the TCPA violation here.” Id. at 4:14-16.
The column examines the Romero and Ewing decisions and explores whether other courts will accept this defense in future TCPA cases.
In TCPA Blog’s latest Law360 column, Mike Daly, Justin Kay, and Victoria Andrews examine the differences in courts’ decisions regarding whether the receipt of a single call or text can be considered concrete harm for the purposes of constitutional standing in TCPA actions. The article first discusses state law claims that are routinely dismissed for lack of sufficient injury because the plaintiff alleged receipt of only one fax or text. It then reviews recent TCPA claims that have been dismissed based upon similar reasoning, and compares them against those that have found that any alleged violation of the statute establishes sufficient injury to confer constitutional standing. In doing so, the article addresses why the second line of cases employs faulty reasoning and fails to adhere to Congress’ intent and goals in enacting the TCPA: Continue reading