Faegre Drinker

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A Busy Summer at the FCC: The Commission Releases Its Fax Waiver Order

On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)).  The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv).  The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.

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Web Messaging Platforms After The FCC’s Declaratory Ruling

While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).

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1st Circuit weighs in on Rule 68 Mootness Issue; Laments that “Uncertainty will Reign” until Supreme Court provides Guidance on Class Action Pick-Offs

We’ve been watching closely as the various Circuit Courts of Appeals grapple with whether a Rule 68 offer of judgment to the named plaintiff in a putative class action can render the case moot even if the plaintiff rejects the offer and wants to keep litigating. As we noted in a previous post, the U.S. Supreme Court is set to resolve the issue soon.

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Centralization – When Is It an Option?

On Friday August 7, 2015, the Judicial Panel on Multidistrict Litigation (the “Panel”) issued four decisions in pending TCPA cases:  In re Holiday Cruise Line Tel. Consumer Prot. Act (TCPA) Litig., MDL No. 2637, 2015 U.S. Dist. LEXIS 103628 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re: Local Lighthouse Corp. Tel Consumer Prot. Act (TCPA) Litig., MDL No. 2644, 2015 US. Dist. LEXIS 103637 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re Portfolio Recovery Assoc., LLC, Tel. Consumer Prot. Act (TCPA) Litig., MDL 2295, 2015 U.S. Dist. LEXIS 103929 (J.P.M.L. Aug. 7, 2015) (granting motion to transfer for inclusion in coordinated or consolidated proceedings) and; In re Sirius XM Radio, Inc. Tel Consumer Prot. Act. (TCPA) Litig., MDL No. 2635, 2015 U.S. Dist. LEXIS 103629 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization).  The four cases have relatively little in common aside from the fact that each involved a claim under the TCPA: In re Portfolio Recovery Assocs. involved alleged debt collection calls over VOIP lines, In re Sirius involved marketing calls that occurred after a free subscription to Sirius XM radio expired, In re Holiday Cruise Line involved unsolicited text messages, and In re Local Lighthouse Corp. involved marketing calls to both cellular and landline numbers. Despite the factual differences between the cases, there are two broad lessons from this group of decisions.

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A Cell Phone Area Code May Not Be Enough to Establish Personal Jurisdiction

In a recent Southern District of Texas decision, Cantu v. Platinum Mktg. Group, Case No. 1:14-CV-71, 2015 U.S. Dist. LEXIS 90824 (S.D. Tex. Jul. 13, 2015), plaintiff Hector Cantu brought suit against defendant Platinum Marketing Group LLC d/b/a/ DiabetesHelpNow.com, LLC (“Platinum”) for calls made to his cell phone in violation of the TCPA. In considering Cantu’s motion for entry of default judgment, the court concluded that it lacked personal jurisdiction over the defendant.

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What You Need to Know About the FCC’s July 10th Declaratory Ruling on the Telephone Consumer Protection Act (TCPA)

A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”).  This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes.  While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief.  Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest.  There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks.  Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling.  Requests may be lodged, however, to stay its enforcement pending review.

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Internet Association Asks FCC To Distinguish Internet Platforms From Their Users For TCPA Purposes

In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.

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FCC’s Enforcement Bureau Commends PayPal for Modifying its User Agreement

We previously advised that the FCC’s Enforcement Bureau, in an unusual move, on June 11 published a letter it sent to PayPal warning that PayPal’s proposed changes to its User Agreement that contained robocall contact provisions might violate the TCPA. These proposed revisions conveyed user consent for PayPal to contact its users via “autodialed or prerecorded calls and text messages … at any telephone number provided … or otherwise obtained” to notify consumers about their accounts, to troubleshoot problems, resolve disputes, collect debts, and poll for opinions, among other things. The Bureau’s letter highlighted concerns with the broad consent specified for the receipt of autodialed or prerecorded telemarketing messages and the apparent lack of notice as to a consumer’s right to refuse to provide consent to receive these types of calls.

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FCC Warns that Unilateral PayPal User Agreement Changes May Violate the TCPA

In advance of the FCC’s highly anticipated June 18 meeting, during which it is likely to vote on an omnibus order disposing of a wide range of pending petitions for declaratory ruling, the FCC’s Enforcement Bureau took an early shot across the bow at a proposed change to  PayPal Inc.’s User Agreement. In an unusual move, the Bureau sent a public letter to PayPal warning it that its new broad “consent to contact” provision may violate the TCPA.

The updates to the User Agreement authorize PayPal to contact a consumer by “autodialed or prerecorded calls and text messages … at any telephone number provided … or otherwise obtained” in order to notify the consumer about his or her account, to troubleshoot problems, or resolve a dispute, collect a debt, poll for opinions, to contact a consumer with promotions, or “as otherwise necessary.” The terms lack an opt-out mechanism for consumers who do not wish to receive these calls. Further, PayPal’s PayPal’s Policy Updates page uses bold and capital letters to make consent to contact a condition of use: “IF YOU DO NOT AGREE TO THE AMENDED USER AGREEMENT, PRIVACY POLICY OR ACCEPTABLE USE POLICY, YOU MAY CLOSE YOUR ACCOUNT BEFORE JULY 1, 2015 AND YOU WILL NOT BE BOUND BY THE AMENDED TERMS.”

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FCC Chairman Proposes to Clarify TCPA Rules at June Meeting

FCC Chairman Tom Wheeler released a fact sheet and issued a blog post this week announcing that he had circulated a proposed order that would rule on the numerous petitions that companies have filed with the FCC seeking clarity on the TCPA rules. According to the Chairman, his proposal reflected in the draft order would “close loopholes and strengthen consumer protections already on the books.” The FCC is expected to vote on the Chairman’s proposal at its monthly meeting currently scheduled for June 18, 2015.

Although details have not been made public, the statements from Chairman Wheeler provide some insight as to what he has proposed:

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