Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.
In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading »
The FCC’s TCPA dockets can be among the agency’s most active, with intermittent waves of petitions filed, followed by releases of public notices seeking comments on petitions for declaratory rulings or clarifications of FCC rules. It can be difficult to track down TCPA items in the FCC’s Electronic Comment Filing System. But fear not: the Drinker Biddle TCPA team has put together this tracker chart to help our readers locate pending TCPA petitions and associated public notices. The chart is organized by issue and contains brief summaries of the requests made by petitioners. It does not include petitions for reconsideration of the FCC’s July 2015 omnibus order.
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The Northern District of California recently granted summary judgment dismissing a plaintiff’s TCPA claim based on text messages that confirmed plaintiff’s hotel reservations and encouraged him to download defendant’s app. Phan v. Agoda Co. Pte. Ltd., No. 16-CV-07243-BLF, 2018 WL 6591800 (N.D. Cal. Dec. 13, 2018). The case turned on whether the texts constituted advertising or telemarketing—thus requiring plaintiff’s prior express written consent. After considering “[b]oth the context and the content of the messages,” the court held that the texts were neither advertising nor telemarketing, and granted summary judgment in defendant’s favor because it was undisputed that plaintiff had given the requisite consent for informational or transactional texts. Continue reading »
Last week, the Eastern District of North Carolina denied a TCPA defendant’s personal jurisdiction challenge, finding unpersuasive its argument that it did not purposefully avail itself of the protections of North Carolina law because it did not intentionally make phone calls to Plaintiff in North Carolina. See Hicks v. Houston Baptist Univ., No. 5:17-CV-629-FL, 2019 WL 96219, at *4–5 (E.D.N.C. Jan. 3, 2019). Continue reading »
The FCC has announced its intention to take another step in combatting fraudulent robocalls by amending its Truth in Caller ID rules to extend to communications originating from outside the United States, as well as expanding the scope of covered communications services to include text messages and additional voice services. Specifically, in anticipation of its scheduled January 30, 2019 Open Meeting, the FCC, just prior to its shutdown on January 3, 2019, released a draft Notice of Proposed Rulemaking, which would implement new FCC rules and definitions designed to deter malicious caller identification spoofing. The proposed rules are intended to update current FCC Truth in Caller ID rules to reflect Congress’ recent enactment of Section 503 of the RAY BAUM’S Act that modified section 227(e) of the Communications Act as well as to “expand and clarify the prohibition on misleading or inaccurate caller identification information.” Continue reading »
TCPA Blog contributors Laura Phillips, Justin Kay, and Marsha Indych will discuss the Telephone Consumer Protection Act at the Coalition of Higher Education Assistance Organizations (COHEAO) Annual Conference on January 28, 2019, in Washington, D.C.
With the D.C. Circuit’s decisions in ACA International and Bais Yaakov and the FCC’s December 2018 order kicking off the creation a national reassigned phone numbers database, businesses are understandably happy with the recent direction in TCPA litigation and regulations and optimistic that the FCC will soon issue an order addressing other issues presented in the ACA International decision, once the partial government shutdown ends. Nevertheless, litigation continues, and as discussed at our November conference (The TCPA in 2018: There and Back Again), significant challenges remain: the 9th Circuit’s decision in Marks, the potential for the Supreme Court to upend the regulatory landscape via PDR Network, and the political difficulties of amending the TCPA. Laura, Justin, and Marsha will discuss these topics and more.
For more information about the conference, please visit the COHEAO website.
Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading »