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

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

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.

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

Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases

On May 9, 2016, the Sixth Circuit reversed a decision of the Northern District of Ohio granting summary judgment to Defendant in a TCPA fax case. Siding & Insulation Co. v. Alco Vending, Inc., No. 15-3551. The district court had accepted Defendant’s argument that it could not be liable under the TCPA for sending the allegedly offending faxes because while it did retain an ad agency (B2B/Caroline Abraham, a combination known well to practitioners in this space) to transmit faxes advertising its services to consenting businesses, it had never authorized transmission of faxes to non-consenting businesses, including the Plaintiff. Finding that under federal common-law agency principles Defendant could not be held vicariously liable for sending the faxes because it neither authorized the transmission of the offending faxes, nor ratified the ad agency’s conduct, the district court entered summary judgment in favor of Defendant. Continue reading

Freedom of Contract Appears Alive and Well in the Third Circuit

Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading

Death And Taxes Are Certain; TCPA Claims Are Not

In Hannabury v. Hilton Grand Vacation Co., LLC, No. 14-cv-6126, 2016 WL 1181789 (W.D.N.Y. Mar. 25, 2016), the District Court for the Western District of New York held that a named plaintiff’s TCPA claims do not survive his death.

Plaintiff had filed a putative class action against Hilton for placing calls to his cell phone in an attempt to sell interests in timeshare properties, even though he alleged that his phone number was listed on the national Do Not Call Registry. The named plaintiff, however, passed away before moving to certify a class. His estate brought a motion to substitute itself as the named plaintiff. Continue reading

TCPA and VoIP: Revisiting the Fourth Circuit’s Ruling In Lynn v. Monarch Recovery Management

In TCPA Blog’s latest Law360 column, contributors Eduardo Guzmán, Michael Daly and Anthony Glosson discuss the Fourth Circuit’s opinion in Lynn v. Monarch Recovery Management Inc.  They explain that the opinion has analytical gaps, leaves unanswered questions, and does not mean that calls to residential VoIP-based telephony services should necessarily be treated differently than calls to other residential:

In short, unpublished opinion in Lynn v. Monarch Recovery Management Inc., the United States Court of Appeals for the Fourth Circuit stated that the “call-charged provision” of the TCPA applied to debt collection calls made to a residential VoIP-based line. The plaintiffs’ bar responded by suggesting that the TCPA applies differently to so-called “VoIP calls,” and telemarketing vendors responded by marketing services that scrub all numbers assigned to VoIP carriers — a move that, given VoIP’s increasing popularity, could end up eliminating a substantial percentage of residential numbers. However, a more objective analysis of the opinion and the issues suggests that these reactions may be overstated, if not altogether misplaced.

They go on to explain that predictions about the decision’s consequences may be wrong because it: (1) is unpublished and nonprecedential; (2) involved a highly unusual fact pattern; and (3) has serious gaps in its interpretation of the scope and application of the “call-charged provision.

Click here to read the full article

Briefing continues in cross appeals of Anda Order

In its October 2014 Final Order (the “Anda Order”), the Federal Communications Commission found that it had the statutory authority to regulate solicited faxes by promulgating a rule that requires an opt-out notice on all such faxes, but also found that because of reasonable confusion surrounding the regulation, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without the opt-out notice. Continue reading