Court Finds That Equipment That Initiates Calls With Electronic Point and Click System Is Not An ATDS

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In Pozo v. Stellar Recovery Collection Agency, Inc., No. 15-0929 (M.D. Fla. Sept. 2, 2016), the Middle District of Florida recently entered summary judgment against the plaintiff because it determined that an ATDS had not been used to call her.

The defendant in Pozo used a web-based dialing program called Human Call Initiator (“HCI”) to initiate the calls. HCI uses a “point-and-click” process that allows calls to be initiated by human “clicker agents.” Specifically, the program will not initiate a call until a clicker agent manually confirms in a dialogue box that the call should be made to that particular number. If a call is answered, the clicker agent then refers the call to a “closer agent” who speaks with the debtor. The program also allows clicker agents to view the availability of closer agents and will not initiate a call unless a closer agent is available. Continue reading

Parties Seek Twenty Minutes Of Oral Argument In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the petitioners in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order filed an unopposed motion seeking twenty minutes of oral argument for each side. As we previously reported, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal.

In requesting twenty minutes of oral argument time, the petitioners note the importance and the complexity of the issues raised in their petitions for review. Namely, “the kinds of equipment that fall within the [TCPA’s] restrictions on calls to wireless numbers from ‘automatic telephone dialing systems,” “the scope of liability for those who call numbers that (unbeknownst to them) have been reassigned from one, consenting consumer to another, non-consenting one,” “the methods by which consumers may revoke consent[,]” and the types of “informational healthcare-related” calls that fall outside of the TCPA’s scope.  As such, the petitioners request that each side be allotted twenty minutes of oral argument time with petitioner Rite Aid arguing five minutes on the healthcare-related issues of the Order and the rest of the petitioners arguing fifteen minutes.

We will continue to monitor the pending appeal and report on any significant developments before and after oral argument on October 19th.

Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order (“Order”). As we previously reported, ACA International filed the first petition for review on the same day the Order was issued. That and subsequent appeals were centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation.  The Joint Petitioners filed their opening brief on November 25, 2015, Rite Aid filed a separate brief the same day that focused on healthcare-related issues, the FCC responded to both briefs on January 15, 2016, and the parties filed final briefs on February 24, 2016. Continue reading

Federal Court Schools Plaintiff on Limits of TCPA

The Middle District of Florida recently entered summary judgment in favor of a school board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016).  The decision creates a potentially insurmountable obstacle for plaintiffs who have taken to setting their sights on school districts and other well intentioned government actors.

In Lambert, the defendant allegedly made 537 calls to the plaintiff’s cellphone shortly after he received a reassigned number. The calls used prerecorded voice prompts and messages that were meant to communicate with prospective substitute teachers, to whom the school district had issued five-digit identification codes. The plaintiff alleged that he was not the intended recipient of the calls and that he neither worked as a substitute teacher nor received an identification code. Continue reading

Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete

On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.

The Joint Petitioners’ Final Brief

The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading

Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order

On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading

Bradley Andreozzi and Justin Kay Discuss TCPA in Modern Healthcare

TCPA Blog contributors Bradley Andreozzi and Justin Kay were recently featured in a Modern Healthcare article about a class action targeting Prospect Medical Group’s Southern California Hospital at Culver City. The suit alleges that the hospital violated the TCPA when its patient department called the plaintiff’s cell phone without the requisite consent in an effort to collect on a debt for services rendered at the facility. The article examined how the hospital became one of the first providers to be sued following the Federal Communications Commission’s July 2015 Omnibus ruling that narrowed the FCC’s reading of the scope of the required prior express consent for automated calls to patients. Continue reading

Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling

On January 22, 2016, two amicus briefs were filed in support of the FCC’s July 10, 2015 Omnibus Ruling in the consolidated appeal before the District of Columbia Circuit. One brief was filed by the National Consumer Law Center, National Association of Consumer Advocates, Consumers Union, AARP, Consumer Federation of America, and MFY Legal Services (collectively the “NCLC Amici”). The other was filed by the Electronic Privacy Information Center (“EPIC”), Constitutional Alliance, Consumer Watchdog, Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times (collectively the “EPIC Amici”). The main arguments of each brief are summarized below. Continue reading

FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling

On Friday, January 15, 2016, the Federal Communications Commission filed its response to the arguments of the joint Petitioners in the consolidated appeal from its July 10, 2015 Omnibus Ruling. The Commission’s brief addresses the scope of its statutory authority, the definition of an “automatic telephone dialing system” (“ATDS”), the meaning of “called party” and the potential liability for calls to recycled numbers, the ability to revoke consent, healthcare-related calls and the emergency purpose exception, and First Amendment challenges to the Commission’s interpretations of the statute. Its main arguments are summarized below.

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Human Intervention After The FCC’s Declaratory Ruling

A recent decision illustrates the uncertainties wrought by the “case-by-case” approach of the FCC’s July 2015 Declaratory Ruling when applied in litigation. In Sherman v. Yahoo, Inc., the plaintiff challenged Yahoo’s messenger service, which converted instant messages submitted by Yahoo users from their computers to text messages that would be received on mobile devices. Plaintiff claimed that the Yahoo service sent her mobile device an unsolicited welcome message using automated dialing technology in violation of the TCPA. Yahoo moved for summary judgment, arguing that its service was not an automatic telephone dialing system (ATDS) as defined by the TCPA because messages could not be sent without human intervention.

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