Defendant Debunks Plaintiffs’ Reliance On FCC Order That Never Became Effective

A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.

In Green v. Navient Solutions, LLC, No. 1:17-CV-1453-VEH, 2018 WL 6303775, at *4 (N.D. Ala. Nov. 29, 2018), the plaintiff alleged the defendant continually autodialed her cell phone using an audibly artificial or prerecorded voice, even after her repeated requests to stop. The defendant sought summary judgment, arguing its calls did not violate and were exempt from the TCPA under 47 U.S.C. § 227(b)(1)(A)(iii) because they were made solely to collect a student loan debt that was guaranteed against default by the United States Department of Education (“ED”). Id. at *2, *4, *5 (citations omitted). The plaintiff pointed to the August 2016 Order, and two cases relying on it, to assert that callers seeking to collect a debt guaranteed by the United States only have consent to call under the TCPA until such consent is revoked. Id. at *6 (citations omitted). This Court sided with the defendant, finding the calls were exempt from the TCPA’s prior consent requirement based on the plain language of the statute and the August 2016 Order did not alter this conclusion because it “never became effective.” Id. at *5. Concluding the August 2016 Order was the plaintiff’s sole basis for her argument, the Court granted the defendant’s motion and dismissed the case with prejudice. Id. at *7 (citation omitted) (footnote omitted).

In Gaza v. Navient Solutions, LLC, No. 8:18-cv-1049-MSS-SPF, 2019 WL 645390, at *1 (M.D. Fla. Jan. 23, 2019), the plaintiff had obtained two federal student loans, where the promissory note specifically provided that the debt was owed to the ED and that the educational institution, the ED, and their respective agents and contractors were permitted to call the plaintiff’s cell phone using autodialing equipment to collect overdue debt. Upon receiving multiple autodialed calls, the plaintiff claimed that even if the calls were permitted under the parties’ agreement, this aspect was voided once the plaintiff gave written notice expressly withdrawing his prior consent to receive such automated debt collection calls. Id. at *1, *2 (citations omitted). Similar to Green, the defendant moved for summary judgment on the plaintiff’s TCPA claim and argued its calls were exempt from TCPA requirements per 47 U.S.C. § 227(b)(1)(A)(iii). Id. at *2 (citations omitted). The Gaza Court relied heavily on the decision and reasoning in Green, finding the defendant was entitled to summary judgment for the same reasons. Id. at *2-3.

Conflicting Opinions Regarding the Validity of the FCC’s Pre-2015 ATDS Rulings

As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading   »

FCC First Report on Illegal Robocalls

On February 14, 2019, the FCC’s Consumer and Governmental Affairs Bureau released its first report on illegal robocalls (“the Robocall Report”) to address the “onslaught of unwanted calls that has led a lot of consumers to stop answering the phone altogether.” This report is compiled based on data points from more than forty comments submitted by voice service providers, trade associations, analytics companies, and consumers. The Robocall Report provided summary analysis on the following issues:

Continue reading   »

The Telephone Consumer Protection Act: Calling for a Re-Do

TCPA Blog contributors Laura Phillips, Justin Kay, and Marsha Indych will discuss the Telephone Consumer Protection Act at the Coalition of Higher Education Assistance Organizations (COHEAO) Annual Conference on January 28, 2019, in Washington, D.C.

With the D.C. Circuit’s decisions in ACA International and Bais Yaakov and the FCC’s December 2018 order kicking off the creation a national reassigned phone numbers database, businesses are understandably happy with the recent direction in TCPA litigation and regulations and optimistic that the FCC will soon issue an order addressing other issues presented in the ACA International decision, once the partial government shutdown ends. Nevertheless, litigation continues, and as discussed at our November conference (The TCPA in 2018: There and Back Again), significant challenges remain: the 9th Circuit’s decision in Marks, the potential for the Supreme Court to upend the regulatory landscape via PDR Network, and the political difficulties of amending the TCPA.  Laura, Justin, and Marsha will discuss these topics and more.

For more information about the conference, please visit the COHEAO website.

FCC Adopts Order Creating a Centralized Reassigned Number Database

After several proceedings and requests for comment, the FCC has approved the creation of a single, centralized reassigned numbers database—a new resource to identify and avoid calling reassigned numbers. Ideally, the proposed database will help businesses in identifying numbers that are being recycled before they are called, thus helping to cut down on the number of calls consumers receive by mistake. This alert outlines the framework of the new database, including access, administration, types of information collected, usage, and potential costs and benefits.

Read the full alert.

Supreme Court Could Set Boundaries on Scope of FCC Guidance

The Supreme Court granted certiorari in PDR Network LLC v. Carlton & Harris Chiropractic Inc., to determine whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the TCPA. Matt noted that the ruling is expected to have a “profound impact” on TCPA litigation going forward “because it will determine whether or not courts can give an independent interpretation of the statute” or if they have to defer to the FCC’s interpretation. Continue reading   »

District Court Grants Summary Judgment for Defendant, Finding its Dialing System Is Not an ATDS

As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading   »

Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing

The Southern District of New York recently granted a motion to dismiss in a putative TCPA class action because plaintiff failed to plausibly allege that the texts at issue constituted telemarketing or contained advertising material, thus requiring plaintiff’s prior express written consent. The decision highlights the importance of pleading the specific content of the communication at issue in a TCPA case, which directly impacts the type of consent that is required. Continue reading   »

As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling

Reflecting the nearly universal sense by constituents that call spoofing and other illegal forms of robocalls are annoying and unwelcome, on November 15, a bipartisan team of United States senators, Senators Markey, Thune and Wicker, introduced a bill titled the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” also known as the TRACED Act. The bill is designed to provide the FCC and other federal agencies acting in concert with the FCC with additional tools to combat spoofing and other illegal robocalling operations by amending Section 227 of the Communications Act to provide for enhanced civil penalties for violation of TCPA rules. Specifically, the bill would provide the FCC going forward with forfeiture authority to assess civil penalties of up to $10,000 per illegal robocall violation and extend the current FCC statute of limitations to investigate TCPA violations from the current one year to three years. The bill also creates new criminal fines of up to $10,000 per violation that can be trebled if the activity was intentional. The FCC would have 270 days following enactment to develop implementing regulations. The bill does not introduce any changes to the current private right of action provisions of Section 227 of the Act. Continue reading   »