As we approach the November 2018 midterm elections, we expect that we will once again see (i) an uptick in the volume of political calls; (ii) a reminder from the FCC that the TCPA applies to those calls (emphasizing that such calls are prohibited if made to cell phones without the consent of the called party, and that all prerecorded calls to cell phones or landlines must comply with certain identification and line release requirements); and (iii) a handful of new lawsuits filed against campaigns, candidates, and committees that allegedly failed to heed the FCC’s warning—all topics we have covered here before. Two recent decisions from a federal court in West Virginia pertaining to the 2016 election serve as a reminder that these lawsuits can linger long after the election ends
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In short, unpublished opinion in Lynn v. Monarch Recovery Management Inc., the United States Court of Appeals for the Fourth Circuit stated that the “call-charged provision” of the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They go on to explain that predictions about the decision’s consequences may be wrong because it: (1) is unpublished and nonprecedential; (2) involved a highly unusual fact pattern; and (3) has serious gaps in its interpretation of the scope and application of the “call-charged provision.
A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).