Faegre Drinker

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Texts Regarding COVID Vaccine Eligibility Are Not Actionable Under TCPA, Texas Northern District Holds

The U.S. District Court for the Northern District of Texas recently held that unsolicited text messages that simply inform recipients of the availability of a free COVID-19 vaccine are protected by the “emergency purposes” exception to the TCPA’s prior express consent requirement and also do not qualify as telephone “solicitations” prohibited by the FCC’s do-not-call (DNC) rules.

In Horton v. Tarrant County Hospital District, No. 4:22-CV-9-P, 2022 WL 702536 (N.D. Tex. Feb. 4, 2022), the plaintiff alleged that he received a single unsolicited text message from the defendant, a public hospital district, announcing that “everyone ages 12 and up is eligible for the COVID vaccine.” Mr. Horton alleged that the text was sent without his consent in violation of the TCPA’s prohibition on autodialed calls as well as the rule against solicitations to telephone numbers on the national DNC list.

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Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds

Last week, the U.S. District Court for the Northern District of Texas held that mobile phones may qualify as “residential telephones” when used (as the Complaint alleged) primarily for “personal, family, and household use,” and thus be subject to the TCPA’s do-not-call rules (47 C.F.R. §§ 64.1200(c) & (d)).  This issue has sewn disharmony among federal district courts and may draw attention from higher courts.  But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), that have agreed that calls specifically directed to persons on a pre-produced list (like plaintiff) are not calls made using a “random or sequential number generator” and thus are not subject to the TCPA’s prior express consent requirement for calls made using an ATDS.

In Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022), the plaintiff alleged that, over the course of last year, he received eight unsolicited phone calls and six SMS text messages on his cell phone from a number he didn’t recognize.  Hunsinger picked up one of the calls and spoke with a representative for the defendant, to whom Hunsinger gave his email address.  Hunsinger subsequently received several calls and texts from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction.  These calls and texts were sent using an ATDS, Hunsinger alleged.  At all relevant times, Hunsinger’s number was on the national DNC list.  Id. at *1.

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Defendants Suable in State Where Calls Inadvertently Received, If Similar Calls Purposefully Directed at Forum Residents, Tenth Circuit Holds

Last week, the U.S. Court of Appeals for the Tenth Circuit applied the Supreme Court’s recent Ford Motor decision on personal jurisdiction to a Rule 12(b)(2) motion to dismiss a TCPA claim.

In Hood v. American Auto Care, LLC, the plaintiff, Alexander Hood, alleged that the defendant (American Auto Care or “AAC,” a Florida company) violated the TCPA by directing automated calls to Mr. Hood’s cell phone without his consent.  No. 20-1157, 2021 WL 6122400, at *1 (10th Cir. Dec. 28, 2021).  According to the complaint, the calls were part of a sweeping telemarketing campaign by AAC that involved calling people from various states, including Vermont and Colorado, to advertise extended vehicle warranties sold by AAC.  Id.  Mr. Hood had previously lived in Vermont and had a Vermont cell phone number, but was living in Colorado at the time he received the calls.  Id.  The U.S. District Court for the District of Colorado granted AAC’s motion to dismiss for lack of personal jurisdiction, finding that the calls to Mr. Hood’s Vermont cell phone number did not “arise out of or relate to” calls that AAC directed at forum residents.  Id. 

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PBM’s Policy Update Fax Not TCPA “Advertisement,” Says Eastern District of Missouri

Earlier this week, the U.S. District Court for the Eastern District of Missouri granted summary judgment for a pharmacy benefit manager (PBM) that allegedly violated the TCPA by sending unsolicited advertisements via fax to thousands of healthcare providers. The defendant was entitled to judgment as a matter of law, the court concluded, because the fax simply notified recipients of changes to insured patients’ coverage and did not promote any products or services.

The case began when a St. Louis healthcare provider (BPP) filed a complaint alleging that defendant CaremarkPCS Health, LLC, violated the TCPA when it sent an unsolicited fax to over 55,000 providers notifying them of new limits on insurance coverage for opioid prescriptions for pediatric and adolescent patients in plans sponsored by Caremark’s clients. BPP v. CaremarkPCS Health, LLC, No. 4:20-cv-126, 2021 WL 5195785, at *1 (E.D. Mo. Nov. 9, 2021). Caremark, which manages prescription drug benefits for various health insurers, asked for summary judgment on the ground that the fax was not an “advertisement” under the TCPA and that plaintiff’s claim therefore failed as a matter of law. Id.

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“The Number You Have Dialed Has Changed Subscriber” or the Advent of the Reassigned Numbers Database

After years of discussion and planning, the FCC’s Reassigned Numbers Database opened for commercial use on November 1, 2021. Now business callers can register for a paid subscription with the FCC’s designated Administrator, SomosGov, to query both the connection and permanent disconnection status of over 152 million U.S. telephone numbers through this web-based platform. This information can let subscribing callers know whether customers who had previously given consent to receive calls and texts from the business have disconnected their phone numbers and whether these phone numbers have since been reassigned to others. By reducing the likelihood of unwittingly making calls to unintended recipients, the Reassigned Numbers Database is expected to prevent millions of “unwanted calls intended for someone who previously held their phone number,” which should provide callers some protection against TCPA allegations of calling without adequate prior consent.

Initially adopted in December 2018, the Reassigned Numbers Database proposal and framework underwent many rounds of public comments on various aspects of its implementation, had nearly three years of preparation, and had a three-month beta test. Since April 2021, nonexempt communications service providers have been reporting permanent disconnections to the Reassigned Numbers Database each month, accumulating data about over 152 million U.S. telephone numbers (including toll-free numbers). Smaller communications service providers began reporting their records into the Reassigned Numbers Database on October 15, 2021.

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Barr Ruling Cures Claims Arising During Life of Government-Debt Exception, Holds Texas District Court

Last week, the U.S. District Court for the Southern District of Texas concluded that plaintiffs can bring claims for violations of 47 U.S.C. § 227(b) that arose while the government-debt exception (“GDE”) to that provision was still on the books.  The decision comes amid growing contention among courts in the wake of the U.S. Supreme Court’s decision last year in Barr v. American Association of Political Consultants, 140 S. Ct. 2335 (2020), which struck down the GDE as an unconstitutional content-based restriction on speech.

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New Petition Renewing Request for FCC Clarification of TCPA Status of “Ringless Voicemail” for “Get Out the Vote” Campaigns

The FCC recently announced a public comment period for a new Petition for Declaratory Ruling that seeks to have the FCC “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (RVM) technology does not constitute a ‘call’” subject to TCPA prohibitions. The Petition was filed by the U.S. Senate campaign for David Perdue – Perdue for Senate, Inc. (Perdue) stemming from litigation in Georgia related to primary election delivery of RVMs to voters. Interested parties have until October 4, 2021, to submit comments and until October 19, 2021, to submit reply comments.

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FCC Seeks to Assess a $5.1 Million TCPA Fine from Political Operatives Behind Alleged Anti-Voting Phone Calls

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.

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Business or Residential? Ambiguity Surrounding Number on Do Not Call Registry Can Defeat Class Certification

In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims.  Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).

In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c).  Id. at *1.  As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry.  New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative.  Id.  In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number.  Id. at *5.

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Sixth Circuit Rejects Strict Liability for Products Advertised via Fax, “Some Level of Knowledge” Required

The U.S. Court of Appeals for the Sixth Circuit recently re-affirmed its position that manufacturers of products advertised in unsolicited fax messages do not face strict liability under the TCPA’s junk-fax provision.  To face liability, the manufacturers must at least be aware that fax advertisements are being sent.

In Lyngaas v. Curaden AG, a dentist sued a Swiss toothbrush manufacturer, Curaden AG, and its American subsidiary, Curaden USA, for sending unsolicited fax advertisements for their toothbrushes.  992 F.3d 412, 417 (6th Cir. Mar. 24, 2021).  The district court concluded that Curaden AG could not be held liable for the faxes because Curaden USA had designed and broadcasted the faxes on its own, without parent authorization.  Id. at 423.  On appeal, the dentist argued that FCC regulation extended liability to any entity “whose goods or services are advertised or promoted” in a fax, regardless of knowledge.  Id. at 424 (quoting 47 C.F.R. § 64.1200(f)(10)).

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