Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.). The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. Continue reading “FCC and District Court Provide Additional Clarity to the TCPA’s Emergency Purpose Exception”
First Amendment Protects Automated Calls Made for Political Campaigns in Arkansas
As we’ve previously discussed, while First Amendment challenges to the TCPA have largely been unsuccessful, First Amendment challenges to restrictions on calls or texts made in connection with political campaigns may fare differently. Further evidence of this distinction came last week, when a district court in the Eastern District of Arkansas declared Arkansas’s restriction on using automated or prerecorded telephone calls to “‘solicit[] information, gather[] data, or for any other purpose in connection with a political campaign’” unconstitutional as “a content-based regulation that does not survive strict scrutiny.” Gresham v. Rutledge, No. 16cv241, 2016 U.S. Dist. LEXIS 97964, at *2-3 (E.D. Ark. July 27, 2016) (quoting Ark. Code Ann. § 5-63-204(a)(1)). Continue reading “First Amendment Protects Automated Calls Made for Political Campaigns in Arkansas”
Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request
For some time the FCC’s Chairman, Tom Wheeler, has been calling on wireless and wireline carriers alike to take more aggressive steps to assist consumers in preventing unwelcome or unsolicited calls and spam messages. The FCC’s July 10, 2015 Declaratory Ruling, for example, contained a discussion focused on resolving the question of whether carriers had a legal obligation to transmit all calls without blocking. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd 7961, ¶¶ 152-63 (July 10, 2015). The Declaratory Ruling affirmed that nothing in the Communications Act or FCC rules or orders prohibits carriers from offering or implementing call blocking technologies for those customers who choose to use them. Id. Continue reading “Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request”
Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order
Yesterday, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order (“Order”). As we previously reported, ACA International filed the first petition for review on the same day the Order was issued. That and subsequent appeals were centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation. The Joint Petitioners filed their opening brief on November 25, 2015, Rite Aid filed a separate brief the same day that focused on healthcare-related issues, the FCC responded to both briefs on January 15, 2016, and the parties filed final briefs on February 24, 2016. Continue reading “Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order”
FCC Issues Declaratory Ruling Confirming an Exemption from Certain of the TCPA’s Restrictions for the Federal Government and its Contractors When Acting within Scope of an Agency Relationship
The FCC recently issued a declaratory ruling addressing petitions that had been filed by Broadnet Teleservices LLC (“Broadnet”), National Employment Network Association (“NENA”), and RTI International (“RTI”), each of which sought guidance or clarification on the extent of the TCPA’s governmental exception when a contractor is placing calls or texts pursuant to its work on behalf of the government. Each of the petitioners provide, or have members that provide, calling services on behalf of federal government entities; Broadnet offers teletown hall calling services for state and local governments as well and RTI performs social science survey work for entities such as the Centers for Disease Control and Prevention (CDC). NENA represents providers of employment services to beneficiaries of Social Security Disability Insurance and Supplemental Security Income. These providers are required to contact program-eligible beneficiaries to provide information about potential programs and services.
Continue reading “FCC Issues Declaratory Ruling Confirming an Exemption from Certain of the TCPA’s Restrictions for the Federal Government and its Contractors When Acting within Scope of an Agency Relationship”
The Rise Of The Professional TCPA Plaintiff
Filing TCPA actions has become a form of sport for certain plaintiffs. In TCPA Blog’s latest Law360 column, our TCPA Team addresses the manufacturing of TCPA claims, which came to a head in a recent case involving an unabashed professional plaintiff who purchased at least 35 cellphones and numbers with the sole purpose of receiving calls to recycled numbers and then filing suit and cashing in. The article notes the growing use (and abuse) of the TCPA by such plaintiffs:
Continue reading “The Rise Of The Professional TCPA Plaintiff”
Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria
In a decision that many saw as lowering the bar for class certification, the Eighth Circuit recently reversed a trial court’s decision that a putative class was not readily ascertainable by reference to objective criteria. Sandusky Wellness Center LLC v. Medtox Scientific Inc., No. 15-1317, 2016 WL 1743037 (May 3, 2016). The Eighth Circuit held that classes must be readily ascertainable, which it had yet to squarely do, but found that this particular class was ascertainable, as it included individuals who “were sent” the fax at issue and “fax logs show[ed] the numbers that received faxes.” In doing so, it rejected the argument that fax logs do not necessarily identify the “recipient” of a fax who would have standing under 47 U.S.C. § 227(b)(1). Continue reading “Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria”
Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues
“Welcome to the great new world of TCPA litigation – where a plaintiff turns up his nose at $10,000 in cash to compensate him for his receipt of a single targeted text message recruiting for the United States Navy, and where our courts stretch the limits of Article III to preserve his crusade for a would-be class of others similarly situated.”-Seamus Duffy
It’s becoming a strange, strange world when it comes to making offers of complete relief to named plaintiffs in class actions. Continue reading “Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues”
Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses
U.S. Senator John Thune (R-S.D.), Chairman of the Senate Committee on Commerce, Science, and Transportation, convened a full committee hearing yesterday titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.” Witnesses at the two-hour hearing included the Attorney General of Indiana and representatives of the U.S. Chamber Institute of Legal Reform, the National Consumer Law Center, and the American Association of Healthcare Administrative Management. Chairman Thune opened the hearing with the following observations: Continue reading “Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses”
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 “Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases”