The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls. Continue reading
At its monthly Open Meeting on June 22, the FCC voted to issue a Notice of Apparent Liability for Forfeiture (NAL) finding that Adrian Abramovich (Abramovich) apparently perpetrated one of the largest spoofed robocall campaigns that the agency has ever investigated. The FCC, through its Enforcement Bureau, concurrently released a separate Citation and Order notifying Abramovich that he also violated the Telephone Consumer Protection Act (TCPA) as well as the federal wire fraud statute by making these same illegal telemarketing calls to emergency lines, wireless phones, and residential phones, and that the calls included prerecorded messages falsely claimed affiliation with well-known U.S. travel and hotel companies, thus defrauding unsuspecting consumers receiving these calls. Continue reading
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