Dish Network Seeks New Trial After $20 Million TCPA Jury Verdict

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Dish Network LLC (“Dish”) recently filed a motion for a new trial after a jury found Dish liable for more than 51,000 calls to 18,000 class members, resulting in an award of $20.5 million.

In Krakauer v. Dish Network LLC, No. 14-0333 (M.D.N.C.), the plaintiff alleged that he had received telemarketing sales calls from an authorized dealer of Dish despite registering his number on the National Do Not Call Registry. He further alleged that these calls continued even after his telephone number was placed on both Dish’s and its authorized dealer’s internal Do Not Call Lists. Before trial, the court certified two classes: the first consisting of persons who received telemarketing calls despite having their telephone numbers on the National Do No Call Registry, and the second consisting of persons who received telemarketing calls despite having their telephone numbers on the internal Do Not Call Lists of Dish or its authorized dealer. Continue reading

Eastern District of Pennsylvania Reaffirms Entry of Summary Judgment in Favor of Yahoo!

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

FCC Holds Webinar On “How to Deal with Robocalls”

Yesterday, the FCC’s Consumer and Governmental Affairs Bureau held an informational webinar titled “How to Deal with Robocalls.” Kristi Thornton (Associate Division Chief, Consumer Policy Division) began by providing background on the TCPA and robocalls, as well as recent FCC actions pertaining to federal debt collection calls and the emergency purposes exception as it relates to calls placed by schools and utility companies. We previously reported on these actions here and here. Continue reading

FTC Issues Annual National DNC Registry Data Book

On December 9th, the Federal Trade Commission released its annual National Do Not Call Registry Data Book for Fiscal Year 2016, which spans from October 1, 2015 through September 30, 2016. The Data Book contains statistical information regarding the number of telephone numbers registered on the Do Not Call Registry, the number of entities that access phone numbers on the Do Not Call Registry, and the number of complaints submitted to the FTC about companies allegedly violating the do-not-call rules. Statistics regarding numbers registered and complaints submitted are also categorized by state and area code in the appendix. Some highlights from the Data Book include:

  • There were 226,001,288 telephone numbers on the Do Not Call Registry compared to 222,841,484 telephone numbers the year before;
  • There were 5,340,234 consumer complaints compared to 3,578,711 consumer complaints the year before; and
  • There were 2,353 entities who paid fees to access the Do Not Call Registry, 17,634 entities who accessed five or fewer area codes from the Do Not Call Registry at no charge, and 503 exempt entities that engaged in calls that either did not involve the sale of goods or services or were directed to persons whom they have an established business relationship with or whom they have obtained express written agreement to call.

This is the eighth year that the FTC has released a National Do Not Call Registry Data Book.

Court Finds Plaintiff-Initiated Text Communication Does Not Constitute Express Written Consent

The Eastern District of California recently denied a motion to dismiss for failure to state a claim, despite the plaintiff having voluntarily initiated the text exchange at issue and having ignored immediately received opt-out notices. Larson v. Harman Mgmt. Corp., No. 16-0219, 2016 U.S. Dist. LEXIS 149267 (E.D. Cal. Oct. 27, 2016). Continue reading

FCC Denies Petition by Mortgage Bankers Association to Exempt Certain Mortgage Servicing Calls from Prior Express Consent Requirement

On November 15, the FCC’s Consumer and Governmental Affairs Bureau denied a petition by Mortgage Bankers Association (MBA)[1] that sought an exemption from the FCC’s prior express consent requirement for non-telemarketing residential mortgage servicing calls to wireless numbers. In its Order, the Bureau concluded that MBA had failed to show (1) that the calls om question would be free of charge to consumers; and (2) that the parties seeking relief should be able to send non-time-sensitive calls to consumers without their consent.[2]

The Bureau’s Order explained that the TCPA “reflects Congress’ recognition of the potential costs and privacy risks imposed on wireless consumers from the use of autodialer equipment, which can generate large numbers of unwanted calls,” and accordingly, the FCC has generally attempted to balance and accommodate the legitimate business interests of callers in addition to recognized consumer privacy interests.[3] Continue reading

District Court Declines to Exercise Supplemental Jurisdiction and Dismisses State Law Claims

On November 7, 2016, a Southern District of Florida court sua sponte declined to exercise its supplemental authority and dismissed a plaintiff’s state law claims in a TCPA action. In Travis v. Residential Credit Solutions, Inc., the plaintiff alleges that defendant placed hundreds of calls to his cellular phone using an ATDS in an effort to collect a debt. From these allegations, the plaintiff filed an individual complaint consisting of three claims: two claims asserting violations of the Florida Consumer Collection Practices Act (“FCCPA”) and one claim asserting a violation of the TCPA. Continue reading

FCC to Hold Webinar on How to Deal with Robocalls

On December 14th, from 1:00 p.m. to 2:00 p.m. EST, the FCC’s Consumer and Governmental Affairs Bureau will be hosting a free webinar for consumers entitled “How to Deal with Robocalls.” The purpose of the webinar is to provide information about consumers’ rights, the FCC’s role in addressing the issue of unwanted telemarketing robocalls, and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive. Individuals may participate via WebEx (audio and video) or by conference call. A detailed agenda is scheduled to be released in advance of the webinar. We will report back with observations and statements.

TCPA Blog Nominated As A Best Legal Blog of 2016

For more than three years, our team has been providing you with breaking news and important information about litigation and regulation under the TCPA. We hope that you have enjoyed reading our blog as much as we have enjoyed writing it. If you have, we invite you to consider supporting our blog by voting for it in this year’s Best Legal Blog Contest.  To do so, please click here and cast your vote. Thank you for your support!

TCPA Class Actions Panel

TCPA Blog contributor Meredith Slawe took part in the “TCPA Class Actions Panel” at the PACE 2016 TCPA Washington Summit on September 19. This conference attracted in-house lawyers and compliance professionals from an array of companies. PACE is one of the entities leading the appeal of the Federal Communications Commission’s (“FCC’s) July 2015 TCPA Order in the D.C. Circuit.

The panel, which also included prominent TCPA defense lawyers from Perkins Coie, Manatt Phelps and Greenspoon Marder and an experienced plaintiff’s class action lawyer from Edelson PC, addressed the state of TCPA-related class action litigation and where these cases are likely going in light of recent court rulings and guidance from the FCC. The discussion was particularly lively in light of the presence of attorneys on both sides of these cases.

Meredith highlighted the need for defendants in these actions to be aggressive and to dig into the facts of these cases early on. She explained that TCPA plaintiffs’ lawyers all too often fail to do the requisite pre-suit investigation of claims and that a close look at the purported facts often dooms the claims at the outset.