FCC Affirms that Health Plans and Providers Cannot Offer Post-Call Opt-Out in Lieu of “Prior Express Consent”

The FCC’s Consumer and Governmental Affairs Bureau last week issued a declaratory ruling resolving a long-pending Petition on the question of whether certain healthcare-related calls, given their significance and value for consumers, should be entirely exempted from the TCPA’s prior express consent requirement, or at least exempted as long as consumers are allowed to opt out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or expand the scope of exemptions already in place for certain types of health-care-related calls.

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FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”

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Serial TCPA Plaintiff Suffers Another Defeat

The United States District Court for the District of Connecticut recently dealt another blow to serial TCPA plaintiff, Gorss Motels, Inc., granting summary judgment to the defendant in Gorss Motels, Inc. v. Lands’ End, Inc., No. 17-cv-00010, 2020 WL 264784 (D. Conn. Jan. 16, 2020). This is the latest in a series of adverse decisions—including from a Court of Appeal—suffered by Gorss Motels.

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N.D. Cal. Court Grants Summary Judgment, Finding that Text Messages Were Neither Advertising Nor Telemarketing

The Northern District of California recently granted summary judgment dismissing a plaintiff’s TCPA claim based on text messages that confirmed plaintiff’s hotel reservations and encouraged him to download defendant’s app. Phan v. Agoda Co. Pte. Ltd., No. 16-CV-07243-BLF, 2018 WL 6591800 (N.D. Cal. Dec. 13, 2018). The case turned on whether the texts constituted advertising or telemarketing—thus requiring plaintiff’s prior express written consent. After considering “[b]oth the context and the content of the messages,” the court held that the texts were neither advertising nor telemarketing, and granted summary judgment in defendant’s favor because it was undisputed that plaintiff had given the requisite consent for informational or transactional texts. 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   »

Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices

The Southern District of Ohio recently denied class certification because the defendant’s unrebutted testimony—which established that its procedures ensured that faxes were only sent to those who had given their prior express permission—created individualized issues that predominated over any common ones. See Sawyer v. KRS Biotechnology, 2018 U.S. Dist. LEXIS 8595 (S.D. Oh. May 30, 2018).        Continue reading   »

Senators Urge FCC to Act in the Face of ACA Int’l

On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions: Continue reading   »

Class Decertified: Wireless Provider’s Data Demonstrates Individualized Issues of Consent

The United States District Court for the Northern District of Illinois recently decertified a class after the defendant, Yahoo! Inc., submitted new evidence showing that tens of thousands of putative class members may have consented to receive the text messages at issue. See Johnson v. Yahoo! Inc., No. 14-2028 (N.D. Ill. Feb. 13, 2018).

The dispute relates to the Yahoo! Messenger service, which allows Yahoo! users to send text messages to cell phones. After a user would send an initial text message to a specific cell phone number, Yahoo! would send an additional “Welcome Message” text message to that number: “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” The plaintiff alleges that these Welcome Messages violate the TCPA based on a theory that Yahoo! did not have the “prior express consent” of the “called party” (the third party to whom the Yahoo! user had sent the original text message). Continue reading   »

District Courts Debate Whether Providing a Phone Number Establishes Consent

Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”

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District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising

As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading   »