As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading
Category Archives: Prior Express Consent
Revocation of Consent Must Be Reasonable and Recollected
Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading
Are Insurance Renewal Notifications Telemarketing? Maybe.
As discussed here, the Central District of California recently granted summary judgment in favor of an insurance company after finding that a prerecorded call to the insured’s mobile phone, which reminded her to review her health plan options for the following year, was not telemarketing and therefore did not require “prior express written consent.” See Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. SACV 16-00108-CJC-KES (C.D. Cal. Jan. 13, 2017).
But just a few weeks ago, a different judge in the Central District reached the opposite conclusion in a similar case, and denied the defendant’s motion to dismiss. See Flores v. Access Ins. Co., No. 2:15-cv-02883-CAS-AGR (C.D. Cal. Mar. 13, 2017) (available here). These two decisions illustrate how courts continue to grapple with the distinction between “telemarketing” and “informational” calls. Continue reading
Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition
The initial comments are in on the Petition of serial plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support. Continue reading
FCC Releases Public Notice on Petition to Eliminate Exceptions to Written Consent Requirement
On February 8, 2017, the FCC issued a public notice seeking comment on a petition for rulemaking and declaratory ruling (the “Petition”) filed by Craig Moskowitz and Craig Cunningham (the “Petitioners”). The Petition seeks the initiation of a rulemaking to overturn the FCC’s allegedly “improper interpretation that ‘prior express consent’ includes implied consent resulting from a party’s providing a telephone number to the caller.” Continue reading
Ninth Circuit Rules on Standing, Revocation of Consent
In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading
Central District of California Holds That Insurance Renewal Notifications Are Not Telemarketing Under the TCPA
The Central District of California recently granted summary judgment to a health insurer after finding that a pre-recorded message delivered to the insured’s cell phone reminding her to review her health plan options for the coming year was not telemarketing. Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. 16cv108 (C.D. Cal. Jan. 13, 2017), ECF No. 73.
In Smith, the plaintiff completed an application for health insurance through California’s Affordable Care Act Healthcare Marketplace, Covered California. As part of that application process, Plaintiff provided her cell phone number as “the best number at which to contact her.” As required by law, the insurance was set to automatically renew for 2016, and in 2015, Blue Shield attempted to contact Smith by sending written materials to her mailing address (as also required by law) to inform her of the changes to her plan and provide her with alternatives. Plaintiff’s materials, however, were returned to Blue Shield as undeliverable. As with other insureds whose materials were returned, Blue Shield followed up with a pre-recorded message stating in relevant part: “This is an important message from Blue Shield of California. It’s time to review your 2016 health plan options and see what’s new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com. If you have not received your information packet in the mail, or if you have any questions, please call the number on the back of your member ID card.” Plaintiff received the call on December 3, 2015; on December 6, 2015, she completed an application for a different insurance plan for the 2016 year. 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
FCC Issues Report and Order Implementing 2015 Bipartisan Budget Act Exemption for Calls Made to Collect on Federally-Owned or -Guaranteed Debt
On August 11, 2016, the FCC released a Report and Order implementing Section 301 of the Bipartisan Budget Act of 2015 (the “Budget Act”), which exempts autodialed and prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States” from the TCPA’s prior express consent requirement. The Budget Act provision also authorizes the FCC to adopt rules to “restrict or limit the number and duration” of any wireless calls made to collect debts owed to or guaranteed by the federal government. Continue reading
FCC and District Court Provide Additional Clarity to the TCPA’s Emergency Purpose Exception
Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.). The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. Continue reading