On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.) In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.
Faegre Drinker
Articles by Faegre Drinker:
N.D. Ohio Finds Putative Fax Blast Class Action Fails to Meet Commonality Requirement
A district court in the Northern District of Ohio recently denied a plaintiff’s motion for class certification in a TCPA blast fax case, finding that the proposed class failed to meet the commonality requirement under Federal Rule of Civil Procedure 23(a)(2). Specifically, the court noted that “the proposed class includes entities that requested the facsimiles and/or had prior business relations” with the defendants and that the faxes sent to those entities did not violate the TCPA. A copy of the opinion in Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., et al., No. 3:12 CV 2257, 2014 WL 1224418 (N.D. Ohio Mar. 24, 2014), is available here.
Commissioner O’Reilly Calls for FCC Action on Backlog of Petitions
In a March 25, 2014 blog post titled “TCPA: It is Time to Provide Clarity,” Commissioner O’Reilly recognized the pressing need for clarity and called for the FCC to act “as soon as possible.” (Read entire post on the Official FCC Blog here). Commissioner O’Reilly’s comments on the past year’s dramatic increase in TCPA litigation and the significant inventory of pending petitions echoes the concerns raised by many petitioners and highlights the fact that fear of litigation is discouraging businesses from offering communications services to consumers. (Prior blog posts addressing a number of the individual petitions filed before the FCC can be found here, here, and here.) As a result, Commissioner O’Reilly points out, consumers are not receiving the “notifications and offers that they want and expect.” This outcome is inconsistent with the balance “between protecting consumers from unwanted communications and enabling legitimate businesses to reach out to consumers that wish to be contacted” that Congress sought to achieve through the TCPA, and requires the FCC to “take a hard look at its own precedent” and “tackl[e] this backlog in a comprehensive manner.”
Two days after Commissioner O’Reilly’s remarks, the FCC granted in part two petitions for expedited declaratory ruling. (The FCC’s March 27, 2014 rulings are available here and here.) The Commissioner’s blog post, in conjunction with the FCC’s recent rulings, may lend additional support to staying ongoing litigation proceedings pending agency action under the primary jurisdiction doctrine, as the Southern District of Texas and the Eastern District of California have already done. (See our posts covering these decisions here and here.)
Court Stays TCPA Class Action until FCC Rules on Definition of “Called Party”
The Eastern District of California recently granted a motion to stay proceedings under the primary jurisdiction doctrine in Matlock v. United Healthcare Servs., Inc., No. 13-2206, 2014 U.S. Dist. LEXIS 37612 (E.D. Cal. Mar. 20, 2014). It stayed the proceedings until the FCC rules on United Healthcare’s expedited petition to clarify the definition of “called party” under the TCPA’s prior express consent provision.
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TCPA Petitions Keep Pouring Into the FCC
As previously covered in other TCPA blog posts, the FCC maintains a range of TCPA rules addressing certain key elements of telemarketing and even non-telemarketing call activities that can implicate routine interactions between companies and their customers or prospective customers. The proper scope and interpretation of some of these rules continue to be the subject of newly filed petitions for clarification, declaratory ruling or even requests for outright waiver of certain FCC rules. We highlight here several of the more recent additions to the FCC’s already large compliment of pending TCPA petitions.
Two California Federal Courts Send Putative TCPA Class Actions to Arbitration
Two federal district courts in California recently hit the brakes on putative TCPA class actions, granting the defendants’ motions to compel arbitration and informing the plaintiffs that, by signing contracts containing arbitration clauses, they relinquished any right to pursue TCPA claims through a class action.
In Mendoza v. Ad Astra Recovery Services, Inc., No. 2:13-cv-06922-CAS(JCGx), 2014 WL 47777 (Jan. 6, 2014 C.D. Cal.), plaintiff Miguel Mendoza sued an agent of a payday lending firm that contacted him regarding repayment of a loan. Mendoza, who had obtained a $255 payday loan from non-party Speedy Cash, alleged that he began receiving calls from defendant Ad Astra on his cell phone after he failed to repay the debt. When Mendoza did not answer these calls, Ad Astra allegedly left “voicemail messages using a pre-recorded or artificial voice.” He contended that such messages violated the TCPA. See 47 U.S.C. § 227(b)(1)(A).
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Hobbs Act Issues Abound in TCPA Cases, Some Drawing FCC Reaction
Appropriate application of the Administrative Orders Review Act (aka the Hobbs Act) can become a contentious issue in some TCPA cases, and in this post we highlight a few recent examples. The Hobbs Act provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of an agency such as the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry. Thus, while plaintiffs in TCPA cases may allege that aspects of the TCPA laws or FCC rules have been violated, they are not free to collaterally attack the substance of FCC rules that they have not timely challenged. The FCC is understandably concerned when plaintiffs mount an indirect challenge of the agency’s rules, in some cases so much so that the agency participates in a court proceeding.
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Genesis Healthcare’s Impact on TCPA Mootness Efforts
We previously discussed some recent mootness decisions coming out of the federal courts in Florida. Within the context of those cases, we explained that the offer must be “complete” and its language must be carefully considered. We also noted that the Supreme Court in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) analyzed but did not reach the mootness issue, leaving lower courts to their own devices. Quite conveniently, a recent decision out of the District of Maryland touched upon both of these topics. See Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 8:11-cv-02467, 2013 U.S. Dist. LEXIS 142527 (D. Md. Oct. 2, 2013). A copy is available here.
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TCPA Class Action Against The Buccaneers Is Mooted … Rematch Already Underway
As we recently discussed, in Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.), the Bucs filed a motion to dismiss a putative TCPA class action on the ground that its pre-certification offer of judgment mooted the named plaintiffs’ claims. In response to the motion to dismiss—indeed, one day later—plaintiffs filed a motion for class certification. Although Judge Merryday immediately denied plaintiffs’ class certification motion as “premature” and lacking “evidentiary support,” he did not rule on the underlying motion to dismiss.
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FCC Opportunities for TCPA Rule Revision or Interpretation
The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling. Immediately upon the federal government’s reopening, two additional petitions were filed. While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.
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