FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits

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TCPA Blog contributor Justin Kay was recently quoted in the Law360 article, “FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits.” The D.C. Circuit’s recent decision negating an FCC regulation requiring opt-out notices on solicited faxes is likely to have long-term consequences for TCPA class actions. Continue reading

D.C. Circuit refutes FCC’s Authority to Require Opt-out Notices on Solicited Faxes . . . and Chairman Pai Agrees

In a post immediately following the November 8, 2016 oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir.), we noted that, based on the lines of questioning from the bench, the three judge panel of Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph appeared to be leaning toward a 2-1 decision with Judges Kavanaugh and Randolph likely forming the majority that would find that the FCC was not empowered to require opt-out notices on solicited faxes. On March 31, the DC Circuit issued its opinion and confirmed our analysis, finding in a 2-1 opinion authored by Judge Kavanaugh (joined by Judge Randolph) that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. The Court therefore vacated the 2006 Fax Order and remanded to the FCC for further proceedings. It declined to address the propriety of the waiver program, finding it moot in light of its holding. Slip. Op. at 11 n.2. Continue reading

Eastern District of Michigan Dismisses Claim Because Fax Was Not An Advertisement

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

Central District of California Dismisses TCPA Claims Due to a Lack of Traceability

One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading

There’s a Ketch: Court Reverses Entry of Summary Judgment in Favor of Plaintiffs with Muddled Timeline

A recent appellate opinion out of Oklahoma state court provides an important reminder that putative classes should not include people who did not receive the communication at issue. See Ketch v. Royal Windows, 113986 (Ct. Civ. App. Okla., Nov. 08, 2016).

In Ketch, the plaintiff filed suit after receiving an allegedly unsolicited fax advertisement from the defendant, from which it had previously requested a catalog. The defendant admitted that the fax advertisement did not have any opt-out language and evidently did not seek a retroactive waiver from the FCC. The plaintiff then moved for summary judgment on behalf of itself and a previously certified class. The trial court granted that motion, finding that Royal was liable to the tune of $290,000.00, i.e., $500 for each fax that had been transmitted. Continue reading

D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order

On November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. Our prior posts on the appeal can be found here, here, and here. The audio recording of the argument is available here. Continue reading

Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order

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

Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases

On May 9, 2016, the Sixth Circuit reversed a decision of the Northern District of Ohio granting summary judgment to Defendant in a TCPA fax case. Siding & Insulation Co. v. Alco Vending, Inc., No. 15-3551. The district court had accepted Defendant’s argument that it could not be liable under the TCPA for sending the allegedly offending faxes because while it did retain an ad agency (B2B/Caroline Abraham, a combination known well to practitioners in this space) to transmit faxes advertising its services to consenting businesses, it had never authorized transmission of faxes to non-consenting businesses, including the Plaintiff. Finding that under federal common-law agency principles Defendant could not be held vicariously liable for sending the faxes because it neither authorized the transmission of the offending faxes, nor ratified the ad agency’s conduct, the district court entered summary judgment in favor of Defendant. Continue reading

Seventh Circuit Affirms District Court Ruling That TCPA Fax Regulations Are Not Strict Liability

On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793, holding that agency rules apply to determine whether a fax is sent “on behalf of” a principal and affirming the district court’s decision that the defendant was liable only for those faxes he authorized.

As previously reported, the lead issue on appeal in this fax-based TCPA case involved whether a defendant is liable for all faxes sent by the fax broadcaster or another third party, or only for those faxes the fax broadcaster or third party was authorized by the defendant to send (in this case, only within a 20-mile radius of the defendant’s businesses). Continue reading

Who Bears Liability For That Call Or Fax? Courts Continue To Wrestle With Direct And Vicarious Liability

Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?

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