Faegre Drinker

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Articles by Faegre Drinker:


Human Intervention After The FCC’s Declaratory Ruling

A recent decision illustrates the uncertainties wrought by the “case-by-case” approach of the FCC’s July 2015 Declaratory Ruling when applied in litigation. In Sherman v. Yahoo, Inc., the plaintiff challenged Yahoo’s messenger service, which converted instant messages submitted by Yahoo users from their computers to text messages that would be received on mobile devices. Plaintiff claimed that the Yahoo service sent her mobile device an unsolicited welcome message using automated dialing technology in violation of the TCPA. Yahoo moved for summary judgment, arguing that its service was not an automatic telephone dialing system (ATDS) as defined by the TCPA because messages could not be sent without human intervention.

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National Grid’s Limited Waiver of Caller Identification Requirements Granted by the FCC

The FCC continues to dispose of pending petitions or requests for waiver of its TCPA rules. One slightly unusual request was the petition filed last February by National Grid USA, Inc. (“National Grid”) requesting a limited waiver of section 64.1200(b)(1) of the Commission’s rules to allow it to satisfy its TCPA caller identification requirements by providing a “doing business as” (“DBA”) name it had registered with state utility commissions when placing prerecorded voice calls rather than its legal name. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Declaratory Ruling and/or Waiver submitted by National Grid USA, Inc., CG Docket No. 02-278, filed Feb. 18, 2014 (“National Grid Petition”).

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Federal Court Grants Defendant’s Motion For Partial Summary Judgment

The United States District Court for the Middle District of Florida (J. James D. Whittemore) recently granted LTD Financial Services, L.P.’s motion for partial summary judgment in a TCPA case involving pre-recorded calls allegedly placed to plaintiff’s cellular telephone. See Estrella v. LTD Financial Services, LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249 (M.D. Fla. Nov. 2, 2015). As we have previously covered, district courts across the country have demonstrated a willingness to dispose of cases where the records fail to establish that the calls or text messages at issue were sent using an automatic telephone dialing system (“ATDS”).

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Distinguished In-House Counsel to Join TCPA Blog Contributors for CLEs in San Francisco and Los Angeles

Please join Drinker Biddle’s TCPA Team and special in-house counsel guests for a CLE program titled “Braving the Minefield of the Telephone Consumer Protection Act: hot Topics in Litigation and Compliance” that will address recent developments and successful defense strategies related to the TCPA.

San Francisco

Tuesday, November 10
The Ritz-Carlton
600 Stockton Street

Los Angeles

Wednesday, November 11
Beverly Wilshire
500 Wilshire Boulevard

Special Guests

Alycia Horn, Assistant General Counsel, Comcast Cable
Melinda McAfee, Vice President & Associate General Counsel, Abercrombie & Fitch
Allison Marrazzo, Litigation, Patent and Technology Counsel, eBay Inc.

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Wisconsin District Court Stays TCPA Suit Pending Review of the FCC’s July 10 Order

On October 20, 2015, the U.S. District Court for the Eastern District of Wisconsin granted defendant Performant Technologies, Inc.’s (“Performant”) motion to continue a stay pending judicial review of the FCC’s July 10 TCPA order (previously discussed here) “in the interest of judicial economy.” Gensel v. Performant Technologies, Inc., No. 13-C-1196 (E.D. Wis. Oct. 20, 2015).

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District Court Dismisses TCPA Claims Based on Good Faith Defense

The U.S. District Court for the Eastern District of North Carolina recently adopted a magistrate judge’s recommendation that summary judgment be entered in favor of a defendant because it had a good faith belief that it had consent to call the plaintiff’s number.

In Danehy v. Time Warner Cable Enterprises, Case No. 14-cv-133 (E.D.N.C.), a pro se plaintiff (“Plaintiff”) alleged that Time Warner violated the TCPA by using an automated telephone dialing system (“ATDS”) to call his cellular phone that was registered on the national do-not-call registry. The phone number at issue had previously belonged to a Time Warner customer who had provided the phone number as a secondary contact for Time Warner to use when he could not be reached at his primary phone number. Time Warner had made calls to, and received calls from, the customer using the number numerous times in the past. The number was eventually assigned to Plaintiff in August or September 2013.

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Ascertainability And TCPA Class Actions

An essential requirement for certifying a class under Rule 23 is a means for presently ascertaining who is or is not a member of the proposed class. A trio of recent district court decisions has applied this ascertainability requirement to proposed TCPA class actions. The cases reach different conclusions as to whether a list of telephone numbers is a necessary or sufficient means of ascertaining class membership.

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FCC Issues Citations To Lyft And First National Bank Due To Alleged TCPA Violations

On September 11, the FCC’s Enforcement Bureau issued two similar citations highlighting telemarketing practices by Lyft, Inc. and the First National Bank (FNB). These Citations stated that each entity had violated the TCPA by failing to allow their respective customers to opt out of receiving telemarketing messages. As we previously reported, the Bureau during the summer had alerted PayPal to similar concerns about its subscription agreement. After the warning, PayPal modified its agreement so as to permit PayPal users to opt out of receiving automated telemarketing messages. These recent citations are shots across the bow at other commercial entities with messaging policies that the FCC views as too restrictive.

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Common Sense Rulings on the Meaning of “Prior Express Consent”

On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.

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