Promotion of Company’s Product on a Prohibited Fax Advertisement Held Insufficient to Sue the Company as the “Sender” Under the TCPA

The Eastern District of Michigan recently rejected an expansive interpretation of “sender” liability for unsolicited fax advertisements alleged to violate the TCPA, ruling that the mere inclusion of a company’s products on fax advertisements sent by a third party is not enough, standing alone, to saddle the company with liability for sending the faxes. Rather, to be liable for the faxes, the company must have taken affirmative steps to advertise its products through the faxes. This common-sense ruling, which further aligns Sixth and Seventh Circuit case law on this important issue, should provide ammunition for companies defending TCPA claims based on faxes sent by others in the distribution chain without the authorization or approval of the defendant. The Court also issued another in the litany of recent decisions confirming the limits on personal jurisdiction over foreign corporations. Continue reading

Courts Rein In TCPA “Revocation Of Consent” Claims

In TCPA Blog’s latest column for Law360, Mike Daly and Dan Brewer discuss the increasingly common “revocation of consent” claim. After the FCC held that consent can be revoked through “any reasonable method,” businesses found themselves struggling to comply with that directive, and plaintiffs found themselves with yet another “gotcha” claim to assert:

The two years that followed the FCC’s ruling have been marked by a dramatic uptick in what had already been a staggering number of TCPA filings, particularly “revocation of consent” claims of the sort predicted by Chairman Pai. Entrepreneurial plaintiffs have even taken to manufacturing such claims by ignoring prompts to text “STOP” and replying instead with “halt,” “cease,” “desist,” “discontinue,” “refrain,” or some other response that is designed to slip through the sender’s automated system for recognizing and registering revocations of consent. Although such contrivances are anything but “reasonable,” plaintiffs know that defending such claims are not without cost or inconvenience, and businesses continue to receive complaints and demand letters every day.

The article then details how a number of courts have started to push back on such claims, for example because the attempt to revoke consent was not “reasonable,” or because consent had been provided in a bilateral contract and therefore could not be unilaterally revoked.

Click here to read the full article.

House Judiciary Subcommittee Holds Hearing on Abusive TCPA Litigation

On Tuesday, June 13, 2017, the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act.”

Based on the testimony, statements, and questions at the hearing, it seems that the Subcommittee is in the very early stages of considering possible reforms to the TCPA. Although there is no draft legislation yet, nor even an agreement in principle of what changes to pursue, several members of the Subcommittee—including Subcommittee chairman Steve King and Judiciary Committee chairman Bob Goodlatte—seem committed to find a way to rein in the statute’s disproportionately high social costs while maintaining its core purpose of protecting consumer privacy. Indeed, both Representatives expressed significant concern regarding the concrete harms that the current wave of TCPA litigation is having—injuring businesses trying in good faith to comply with the law; depriving consumers of desired (and, in some cases, sorely needed) communications; and enriching a small cohort in the legal profession who are pursuing their personal profit rather than the welfare of the American consumer. Continue reading

Plaintiffs Continue to Target Retail Text Programs

In TCPA Blog’s latest column for Law360, Mike Daly and Meredith Slawe discuss the “unrelenting” pace of TCPA litigation in 2017, particularly claims targeting retail text message programs. They discuss the FCC’s rulings on number of issues and explore the different approaches of the previous administration and the current administration under Chairman Ajit Pai. They also recount what Chairman Pai has described as the “ridiculous lengths” to which some plaintiffs have gone to exploit the TCPA:

That was, if anything, an understatement. Some plaintiffs have taken to buying phones and requesting area codes for regions where debt collection calls are common,  hiring staff to log calls in order to file hundreds of lawsuits,  porting a repeating digit phone number from a landline to a cellphone,  asking employees to text ‘JOIN’ to unknown company numbers,  and even teaching classes on how to sue telemarketers. Others have sent demand letters after purporting to revoke their consent—often moments after enrolling in a text program—by using anything other than the obvious word “stop.” These plaintiffs will receive text advising them that they can opt out by texting “stop” but will try to trap businesses by responding with unorthodox synonyms such as “cease,” “desist,” “refrain,” or “halt,” which will not trigger many opt-out mechanisms. Responses such as these are not even believable, let alone “reasonable.” And the certification of a class of such people would be inappropriate for a whole host of reasons. But plaintiffs know that defending even these claims would not be without cost or inconvenience, and businesses continue to receive demand letters every day.

They conclude that, “[i]n the absence of meaningful congressional or regulatory reform and as we await a ruling from the D.C. Circuit on the proper interpretation of the statute, retailers should continue to mitigate their TCPA risk by observing best practices and engaging in active vendor management.”

Click here to read the full article.

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

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