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

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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.

House Subcommittee Holds Hearing on Modernizing the TCPA

U.S. Rep. Greg Walden (R-OR), Chairman of the House Energy and Commerce Subcommittee on Communications and Technology, convened a hearing yesterday titled “Modernizing the Telephone Consumer Protection Act.” Chairman Walden opened the hearing with the following observations:

We all share the goal of preventing harmful phone calls, but it is increasingly clear that the law is outdated and in many cases, counterproductive. The attempts to strengthen the TCPA rules have actually resulted in a decline in legitimate, informational calls that consumers want and need.

The four witnesses at the one and a half hour hearing were Michelle Turano from WellCare Health Plans, Inc., Shaun W. Mock from Snapping Shoals Electric Membership Corporation, Spencer W. Waller from Loyola University Chicago, and Richard D. Shockey from Shockey Consulting. Continue reading

House Subcommittee to Hold Hearing on Modernizing the TCPA

Today at 11:00 a.m., the Subcommittee on Communications and Technology will be holding a hearing entitled “Modernizing the Telephone Consumer Protection Act.”  The purpose of the hearing is for the Subcommittee to “consider the challenges faced by consumers and companies in a world where technology and consumer behavior may have outpaced the language of the Telephone Consumer Protection Act of 1991.” Continue reading

3 Factors to Weigh in Deciding To Fight Or Fold TCPA Suits

TCPA Blog’s Michael Daly and Meredith Slawe were recently quoted in the Law360 article, “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.” They explained that “[t]he best approach to defending TCPA cases is to master the facts of each case as early as possible and map out multiple paths to victory. Oftentimes, the smallest details can mean the difference between whether or not a call qualifies as ‘telemarketing’ or a consumer provided ‘consent’ or equipment qualifies as an ‘automatic telephone dialing system.’” The remainder of the article examines other factors from both plaintiffs’ and defendants’ perspectives.

Read “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.”

Can 1 Call Or Text Cause Injury Under TCPA?

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