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Court Rejects Habitual TCPA Plaintiff’s Procedural Gamesmanship

In a recent condemnation of procedural “gamesmanship of the lowest order,” District Judge Michael M. Baylson not only denied a plaintiff’s request for a default judgment and for sanctions, but also sua sponte ordered the plaintiff to show cause why sanctions should not be issued against him.  The case is Perrong v. DVD II Group, LLC, 2023 WL 3229934 (E.D. Pa. May 3, 2023).

Plaintiff Andrew Perrong, who the court described as “a habitual litigant with extensive familiarity with the TCPA and court proceedings,” filed a TCPA action against Defendants DVD II Group, LLC and Kevin Knasel.  Mr. Perrong hired a process server, who successfully served Defendants on March 13, giving them until April 3 to respond according to the federal rules.

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More TCPA Calling and Texting Restrictions Proposed by the FCC

At the Federal Communication Commission’s (“FCC”) June 8 Open Meeting, the Commissioners voted to adopt a new Notice of Proposed Rulemaking (“Notice”) designed to clarify and expand upon the ability of consumers to decide what calls or texts subject to the Telephone Consumer Protection Act (“TCPA”) they wish to receive.  The Notice addresses pending but unresolved petitions for declaratory rulings filed by a range of entities seeking clarification of a variety of TCPA policies.  The Notice also highlights the agency’s intention to adopt specific rules codifying stated FCC policies contained in prior orders so that consumer rights are “clear” and easy to understand.  Each of the areas addressed by the Notice could affect the compliance programs of callers and texters, and the Notice thus represents an opportunity to inform the FCC of practical consequences of its proposals before it acts to adopt new rules.

Revocation of Consent in “Any Reasonable Way”

In its 2015 Declaratory Ruling, the FCC stated that consumers who had provided prior express consent to receive autodialed or pre-recorded voice calls are free to revoke that consent through any reasonable means of notification to the calling or texting party.  The Notice proposes to formally adopt a rule incorporating that flexibility and prohibiting calling or texting parties from designating any exclusive means to revoke consent.  The proposed rule states that reasonable revocation methods “typically” include text messages, voicemail or email to any phone number or email address where the consumer “can reasonably expect” to reach the caller.  The Notice calls out the use of “STOP” as a widely recognized means of revoking consent and proposes that the FCC employ a presumption that such a message, if sent, it is to be treated as a revocation of consent message.  If text initiators do not allow or enable a reply to text function, then the FCC proposes that that entity be required to provide clear and conspicuous disclosure on each text as to how to revoke consent.

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