TCPA Blog’s Mike Daly co-authored an article for the ABA about the impact of the Supreme Court’s recent ruling in Facebook, Inc. v. Duguid, which clarifies the TCPA’s definition of an ATDS. The article explains that the unanimous decision is a victory for businesses because it limits the scope of the statute’s restriction on autodialing and because it should drastically decrease the volume of litigation arising under that part of the statute, which has been one of the most active areas of litigation in recent years. But the article also predicted that the ruling may cause plaintiffs’ counsel to focus on other calling restrictions, for example its restrictions on artificial or prerecorded voices, Do-Not-Call restrictions, and even faxes.
The Eastern District of Missouri recently granted a plaintiff’s motion for summary judgment against three defendants in a TCPA fax case. Levine Hat Co. v. Innate Intelligence, LLC, No. 16-cv-01132, 2021 WL 1889869 (E.D. Mo. May 11, 2021). The court’s opinion discusses two areas of law with limited Eighth Circuit authority and illustrates the uncertainty regarding how district courts in the jurisdiction may rule on these issues in the future. Id. at *3-5. Specifically, the opinion discusses the analysis a court may apply to determine if a fax is an “unsolicited advertisement.” Id. at *3-4. The opinion also enumerates the factors a court may consider when assessing whether a “fax broadcaster” demonstrates a sufficiently “high degree of involvement” in the transmission of a fax to render it liable for the transmission. Id. at *3-5.
For nearly five years, the TCPA explicitly excluded from liability calls made to collect government-backed debt. Naturally, government debt collectors relied on this exception and called debtors without fear of TCPA liability. In 2020, the Supreme Court ruled that this exception was unconstitutional and severed it from the statute. Now, a federal district court has ruled that government debt collectors may be liable for calls made prior to the Supreme Court Ruling, despite their reasonable reliance on the exception. In doing so, the court brushed aside due process concerns.
As previously reported, the government debt exception was severed from the statute by the Supreme Court’s decision in Barr v. AAPC. The AAPC decision was highly fractured—with the Court issuing four opinions but none commanding a majority. Since, district courts have been grappling with AAPC means for the statute.
In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims. Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).
In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c). Id. at *1. As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry. New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative. Id. In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number. Id. at *5.
The Eastern District of Texas recently dismissed a plaintiff’s TCPA claim in Cunningham v. Matrix Financial Services, LLC, No. 4:29-cv-896 (E.D. Tex. Mar. 31, 2021) for lack of subject matter jurisdiction.
This decision came after the District Court rejected the magistrate judge’s recommendation that subject matter jurisdiction was proper. The recommendation focused on the Supreme Court’s recent decision in Barr v. American Association of Political Consultants (“AAPC”), 140 S. Ct. 2335 (2020), which held that the government-debt exception violated the First Amendment. The magistrate judge noted that, following AAPC, the majority of district courts had held that federal courts retained subject matter jurisdiction over TCPA claims brought under § 227(b)(1)(A)(iii) during the exception’s existence. Those that did not were deemed unpersuasive given that “[t]he Supreme Court in AAPC explicitly found that the government-debt exception in the TCPA was severable from the remainder of the statute and declined to strike down the TCPA’s entire robocall ban.” Further, the magistrate judge reasoned that “[t]he dispositive inquiry lies in . . . [footnote twelve of AAPC]”, which stated that the AAPC Court’s “decision does not negate the liability of parties who made robocalls covered by the robocall restriction.”
The U.S. Court of Appeals for the Sixth Circuit recently re-affirmed its position that manufacturers of products advertised in unsolicited fax messages do not face strict liability under the TCPA’s junk-fax provision. To face liability, the manufacturers must at least be aware that fax advertisements are being sent.
In Lyngaas v. Curaden AG, a dentist sued a Swiss toothbrush manufacturer, Curaden AG, and its American subsidiary, Curaden USA, for sending unsolicited fax advertisements for their toothbrushes. 992 F.3d 412, 417 (6th Cir. Mar. 24, 2021). The district court concluded that Curaden AG could not be held liable for the faxes because Curaden USA had designed and broadcasted the faxes on its own, without parent authorization. Id. at 423. On appeal, the dentist argued that FCC regulation extended liability to any entity “whose goods or services are advertised or promoted” in a fax, regardless of knowledge. Id. at 424 (quoting 47 C.F.R. § 64.1200(f)(10)).
TCPA Blog’s Michael Daly will be participating in a webinar titled “Supreme Court’s Facebook Decision Upends TCPA Litigation Landscape.” This webinar on Thursday, April 22, 2021, will delve into the Supreme Court’s decision in Facebook v. Duguid, which resolved a split among the lower courts over how to interpret the TCPA’s definition of an “automatic telephone dialing system.” The panelists from the Consumer Litigation Committee of the American Bar Association’s Litigation Section will analyze the decision and discuss the future of TCPA litigation.
For more information and to register, please click here.