For years, courts, litigants, and commentators have grappled with the TCPA’s definition of “automatic telephone dialing system” (“ATDS”). As a result of the FCC’s July 2015 Declaratory Ruling and Order, the debate has focused on the question of capacity, i.e., whether a device must have the present capacity to “(a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers” or—as the FCC found—if the potential capacity is sufficient. Continue reading
We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading
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
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
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
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.
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
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
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
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