The Federal Communications Commission has proposed to slap a Virginia political firm and two of its principals with a $5,134,500 fine for placing over one thousand prerecorded phone calls to cell phones across the country without prior consent from recipients, in violation of the TCPA and Commission rules. The action is the FCC’s first big enforcement matter under the recently enacted Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act and demonstrates the Commission’s willingness to use that statute to assess hefty penalties against noncompliant entities.
Under the 2019 TRACED Act, the Commission may issue a “Notice of Apparent Liability for Forfeiture” to an entity that violates the TCPA’s prohibitions on prerecorded voice messages and autodialing systems, without first having to issue a warning to the entity. See Pub. L. No. 116-105, 133 Stat. 3274, Sec. 3(a). The defendant then has an opportunity to challenge the allegations before the Commission issues a final decision on liability and fines. See FCC, Enforcement Primer (“FCC-Initiated Investigations”). Prior to the TRACED Act, FCC rules required the Commission to issue a citation to an alleged violator of § 227(b) before it could seek to impose a forfeiture penalty upon them.
Last week, Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina handed down a decision of first impression for that court: the FCC’s do-not-call rule, 47 C.F.R. § 64.1200(d), creates a private right of action for telephone subscribers who receive calls in violation of that rule’s “minimum standards.” The decision widens the growing split among federal courts as to which provision of the TCPA gives life to the DNC rule.
On its motion to dismiss, the defendant argued that the plaintiff could not maintain an action for alleged violations of § 64.1200(d) because the FCC promulgated that rule under 47 U.S.C. § 227(d), which does not create a private right of action for violations of implementing regulations. Fischman v. MediaStratX, LLC, No. 2:20-CV-83-D, 2021 WL 3559639, at *4 (E.D.N.C. Aug. 10, 2021). In opposition, the plaintiff argued that the rule was actually passed pursuant to 47 U.S.C. § 227(c), which does create a private right of action for such violations. Id.
On August 10, 2021, a divided Ninth Circuit panel vacated a trial court’s certification of two nationwide classes, finding that the defendant had not waived its personal jurisdiction objection to class certification by not raising the issue at the pleading stage. See Moser v. Benefytt, Inc., No. 19-56224, 2021 WL 3504041 (9th Cir. Aug. 10, 2021).
This case arose as a putative nationwide class action filed by Kenneth Moser in federal court in California against Benefytt Technologies, Inc., formerly known as Health Insurance Innovations, Inc. (HII), alleging that HII was responsible for unwanted sales calls that violated the TCPA. Moser was a resident of California, whereas HII was incorporated in Delaware and had a principal place of business in Florida.
The Seventh Circuit has reversed a decision from last year by the U.S. District Court for the Northern District of Illinois dismissing a TCPA claim for lack of personal jurisdiction over an alleged principal of the caller. That decision, which we covered here, concluded that the plaintiff had not established an agency relationship between defendant Health Insurance Innovations, Inc. (“HII”) and the unnamed “lead generators” that had made the allegedly unsolicited calls. Bilek v. Fed. Ins. Co., No. 19-8389, 2020 WL 3960445, at *5 (N.D. Ill. July 13, 2020). As a result, the Northern District held that it lacked specific personal jurisdiction over HII, which had no connection to the forum state beyond its alleged relationship with the telemarketers that called the plaintiff in Illinois. Id.
On appeal, the plaintiff argued that he had plausibly alleged an agency relationship and that the district court should therefore have imputed the caller’s conduct to HII when assessing whether it could exercise specific personal jurisdiction over the latter. Bilek v. Fed. Ins. Co., No. 20-2504, 2021 WL 3503132, at *6 (7th Cir. Aug. 10, 2021).
After adopting orders reflecting the majority of implementation deadlines set by the TRACED Act and the Supreme Court’s highly anticipated TCPA decision interpreting the statutory definition of automatic telephone dialing system in the first half of 2021, all eyes are on what the FCC has planned. Midsummer seems like a good time for a year-to-date review to track where the FCC has been and where it is headed next in its TCPA oversight and enforcement roles.
STIR/SHAKEN Call Authentication Framework
Last week, the FCC adopted its January 2021 proposal and issued a Report and Order establishing what the FCC describes as “a fair and consistent process” that a voice service provider can use to challenge a decision by the STIR/SHAKEN framework Governance Authority to strip that provider of the “digital token” that authenticates calls on that provider’s Internet-Protocol (IP) networks.
A court in the District of Oregon recently granted a defense motion to deny class certification, largely because the issue of whether the putative class representative’s phone number was “residential”—a prerequisite to TCPA protection—would predominate the litigation.
In Mattson v. New Penn Financial, LLC, the district court considered plaintiff’s objections to the magistrate judge’s findings and recommendation regarding defendant’s motion to deny class certification. No. 3:18-CV-00990-YY, 2021 WL 2888394, at *1 (D. Or. July 9, 2021). The magistrate judge had concluded that plaintiff was an inadequate class representative because questions remained concerning whether he alleged a sufficient injury in fact to bring a TCPA claim, and also because issues individual to the plaintiff would predominate the litigation.