With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC. The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding. Continue reading “Currently Pending FCC Petitions in TCPA Matters”
Faegre Drinker
Articles by Faegre Drinker:
Ninth Circuit: Conditional Tender Does Not Moot Putative Class Action
In the wake of the Supreme Court’s decision in Campbell-Ewald v. Gomez, the Ninth Circuit has held that an offer tendering complete relief, conditioned on the dismissal of a putative class action, is insufficient to moot the action for purposes of Article III jurisdiction.
In Chen v. Allstate, No. 13-16816 (9th Cir. April 12, 2016), the defendant deposited in escrow an amount exceeding the value of the plaintiff’s individual TCPA claim. The escrow instructions conditioned the payment of the funds on the entry of an order from the district court dismissing the action as moot. The defendant asked the Ninth Circuit to supplement the record on its pending appeal, to hold that the tender had mooted the plaintiff’s claims under Article III, and to direct the district court to dismiss the action. Continue reading “Ninth Circuit: Conditional Tender Does Not Moot Putative Class Action”
What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line”
On March 31, 2016, the FCC released a public notice (“Public Notice”) seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Petition”), an attorney who maintains a home-based law practice. As Bank’s Petition notes, the TCPA includes a number of restrictions that apply to residential lines. For example, among them, the TCPA provides that “[i]t shall be unlawful for any person . . . to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . .” See 47 U.S.C. § 227(b)(1)(B). In his Petition, Bank argues that these calling restrictions apply to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber. The resolution of this question could have wide-reaching implications for telemarketers, who might as a result have another screen to apply to potential calls as to whether a number held out as a business line is actually a residential line as classified by the telephone service provider. Continue reading “What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line””
Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual
Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading “Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual”
FCC Seeks Public Comment on Lifetime Petition For Declaratory Ruling or Retroactive Waiver
The FCC’s Consumer and Governmental Affairs Bureau has issued a public notice seeking comment on a December 11, 2015 petition by Lifetime Entertainment Services, LLC (“Lifetime”). The petition asked the FCC to clarify that the TCPA’s limitations on prerecorded calls do not apply to calls by cable operators and networks that merely inform subscribers about content that they are already entitled to watch. In the alternative, Lifetime sought a grant of retroactive waiver for a call that it had allegedly placed to inform subscribers that a reality television program had moved to Lifetime, and was accordingly available under the subscriber’s current plan. Lifetime argued that, because it was not urging the subscriber to make a new purchase, and indeed, provided no information on how to make any purchase, the call should be viewed as informational, not telemarketing. In support of this conclusion, Lifetime cited Sandusky Wellness Center, LLC v. Medco Health Solutions, which deemed informational several faxes that were “not sent with hopes to make a profit.” 788 F.3d 218, 221 (6th Cir. 2015). The FCC has set the deadlines for comments and reply comments on this petition at March 7, 2016 and March 21, 2016, respectively.
FCC Releases Order Denying Club Texting’s 2009 Petition on Text Broadcaster Liability Standards
On January 11, 2016, the FCC’s Consumer and Governmental Affairs Bureau (“Bureau”) acted on a petition filed in 2009, and denied Club Texting, Inc.’s (“Club Texting”) petition for declaratory ruling, which asked the FCC to clarify that text broadcasters are subject to the same TCPA liability standard as that applied to fax broadcasters. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petition of Club Texting, Inc. for Declaratory Ruling, Order, CG Docket 02-278 (Jan. 11, 2016) (“Jan. 11 Order”); see also Club Texting, Inc. Petition for Declaratory Ruling that Text Broadcasters Are Not “Senders of Text Messages Under § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278 (Apr. 25, 2009) (“Club Texting Petition”).
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.
Continue reading “Human Intervention After The FCC’s Declaratory Ruling”
Ninth Circuit Affirms Grant of Summary Judgment to PayPal
In Roberts v. PayPal, Inc., No. 13-16304, 2015 U.S. App. LEXIS 18836 (9th Cir. Oct. 29, 2015) the Ninth Circuit recently upheld a grant of summary judgment to PayPal in Roberts v. PayPal, Inc., No. 12-0622, 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May 30, 2013).
Continue reading “Ninth Circuit Affirms Grant of Summary Judgment to PayPal”
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”).
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”).
Continue reading “Federal Court Grants Defendant’s Motion For Partial Summary Judgment”