A recent decision illustrates the uncertainties wrought by the “case-by-case” approach of the FCC’s July 2015 Declaratory Ruling when applied in litigation. In Sherman v. Yahoo, Inc., the plaintiff challenged Yahoo’s messenger service, which converted instant messages submitted by Yahoo users from their computers to text messages that would be received on mobile devices. Plaintiff claimed that the Yahoo service sent her mobile device an unsolicited welcome message using automated dialing technology in violation of the TCPA. Yahoo moved for summary judgment, arguing that its service was not an automatic telephone dialing system (ATDS) as defined by the TCPA because messages could not be sent without human intervention.
Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?
A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”). This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes. While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief. Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest. There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks. Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling. Requests may be lodged, however, to stay its enforcement pending review.
A critical issue under the TCPA is the extent to which the statute applies to mobile text messaging platforms. As evident from its title, Congress intended that the TCPA would protect consumers from unsolicited telephone calls, as placed through automated telephone dialing systems (“ATDS”). As early as 2003, the FCC decided that text messages are “calls” under the TCPA, but has not yet addressed the corollary issue of when and whether a text messaging platform might be considered an ATDS.
In Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), a panel of the Ninth Circuit Court of Appeals addressed several recurring issues in TCPA litigation, including: the efficacy of Rule 68 offers to moot putative class actions; potential First Amendment defenses; and vicarious liability.
In an unpublished opinion, the Ninth Circuit recently affirmed a district court’s ruling that Taco Bell was not vicariously liable for text messages sent by a third party advertising a Taco Bell product. See Thomas v. Taco Bell Corp., No. 12-56458, 2014 WL 2959160 (9th Cir. July 2, 2014). The ruling is one of the first appellate decisions to consider vicarious liability for section 227(b) violations in the wake of an FCC declaratory ruling that had endorsed and indeed provided guidelines on that topic. See In re DISH Network, LLC, 28 F.C.C. Rcd. 6574 (2013). Unfortunately for companies grappling with these issues, the unpublished Ninth Circuit decision does not provide any additional clarity.
Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).
The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.
Virtually every customer-facing industry has faced TCPA class actions and sports franchises are no exception. In the past few months, both the Los Angeles Clippers and the Buffalo Bills have settled TCPA suits that relate to text messages.
The Clippers recently agreed to settle a TCPA class action that relates to the alleged dissemination of promotional text messages without the requisite consent. Specifically, in Friedman v. LAC Basketball Club Inc., No. 13-0818 (C.D. Cal.), the plaintiff claimed that he received promotional messages after he sent the team a text message that he wanted it to display on its scoreboard during a game.
Previous TCPA Blog posts have noted that the FCC has a growing backlog of petitions for rulemaking, expedited declaratory ruling, or petitions for clarification on numerous issues posed by the TCPA.  On a recent Friday, the FCC acted on two separate long pending petitions for expedited declaratory ruling. This post highlights the FCC’s ruling on the petition filed by GroupMe, Inc./Skype Communications S.A.R.L. (“GroupMe”).
On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.) In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.