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FCC Seeks Comment on Petition Concerning Prior Express Consent

On August 1, 2014, the FCC issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (“Santander”), which requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to non-telemarketing calls and text messages to cellular telephones, which include informational messages (e.g., messages regarding school closings or messages containing flight status information) and debt collection messages under the TCPA. Comments in response to the Public Notice are due September 2, 2014, and reply comments are due September 15, 2014.

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FCC Seeks Comment on Petitions Concerning the FCC’s Rule on Opt-Out Notices for Fax Advertisements

On July 25, 2014, the FCC issued a Public Notice seeking comment on five petitions, filed by American Caresource Holdings, Inc. (“ACH”), CARFAX, Inc.(“CARFAX”), UnitedHealth Group, Inc. (“UnitedHealth”), MedLearning, Inc. and Medica, Inc. (“Medica”), and Merck and Company, Inc.(“Merck”) (collectively, the “Petitioners”) requesting a declaratory ruling and/or a waiver of section 64.1200 (a)(4)(iv) of the FCC’s rules. This rule requires certain fax advertisements to include an opt-out notice. ((See 47 C.F.R. § 64.1200 (a)(4)(iv).)) Comments in response to this Public Notice must be filed by August 8, 2014; reply comments are due August 15, 2014.

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Ninth Circuit Affirms Summary Judgment, Taco Bell Not Vicariously Liable for Third-Party Text Message

In an unpublished opinion, the Ninth Circuit recently affirmed a district court’s ruling that Taco Bell was not vicariously liable for text messages sent by a third party advertising a Taco Bell product. See Thomas v. Taco Bell Corp., No. 12-56458, 2014 WL 2959160 (9th Cir. July 2, 2014). The ruling is one of the first appellate decisions to consider vicarious liability for section 227(b) violations in the wake of an FCC declaratory ruling that had endorsed and indeed provided guidelines on that topic. See In re DISH Network, LLC, 28 F.C.C. Rcd. 6574 (2013). Unfortunately for companies grappling with these issues, the unpublished Ninth Circuit decision does not provide any additional clarity.

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M.D. Fla. Rejects “Placeholder” Class Certification Motion

As we have previously noted, several courts in the Middle District of Florida have made it abundantly clear that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempt to “pick-off” a named plaintiff. See Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.) (J., Merryday); Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.) (M.J., Spaulding). Last week, the court reiterated this stance yet again. See Dickerson v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014) (J. Moody).

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D. Mass. Grants Summary Judgment to Plaintiff, Finds Predictive Dialer to be an ATDS

The District of Massachusetts recently entered summary judgment in favor of a plaintiff after deferring to FCC statements that purport to expand the definition of an automated telephone dialing system (“ATDS”) to include predictive dialers that can dial stored numbers without human intervention. See Davis v. Diversified Consultants, Inc., No. 13-10875 (D. Mass. June 27, 2014).

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Twitter Sued in TCPA Class Action for Messaging Recycled Wireless Numbers

Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).

The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.

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Sixth Circuit Vacates Denial of Class Certification in Blast Fax Case

In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.

Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).

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Offer of Judgment Served Hours Before Motion for Class Certification Filed Moots TCPA Claim

In Barr v. The Harvard Drug Grp., LLC, 13-62019, 2014 U.S. Dist. LEXIS 79422 (S.D. Fla. June 11, 2014), the court found that an offer of judgment served via email mooted the plaintiff’s claim despite the filing of a motion for class certification later that same day.

The class action complaint alleged that the defendant sent faxes in violation of the TCPA. The defendant served an offer of judgment on the plaintiff’s attorneys via email on November 27, 2013, at 11:12 am and also via UPS. The defendant offered to pay $1,500 for each alleged violation of the TCPA, to pay any costs and reasonable attorneys’ fees, and to stipulate to an injunction and the entry of a judgment against it. At 3:25 pm that same day, the plaintiff moved for class certification.

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Eleventh Circuit Rejects “Intended Recipient” Interpretation of TCPA’s “Called Party” Language

The Eleventh Circuit recently ruled that the TCPA’s prohibition on prerecorded calling applies to wireless numbers that have been reassigned from a consenting subscriber to a new, presumably nonconsenting one, regardless of the caller’s knowledge of the reassignment. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). Currently, the Act permits businesses to place prerecorded telemarketing calls to wireless subscribers with “the prior express consent of the called party,” see 47 U.S.C. § 227(b)(1)(A), but does not specify whether the term “called party” refers to the intended recipient of the call or the actual recipient.

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GroupMe Gets an FCC Green Light on Sending Administrative Texts to Confirm Interest in Joining Social Network Groups

Previous TCPA Blog posts have noted that the FCC has a growing backlog of petitions for rulemaking, expedited declaratory ruling, or petitions for clarification on numerous issues posed by the TCPA. [1] On a recent Friday, the FCC acted on two separate long pending petitions for expedited declaratory ruling.  This post highlights the FCC’s ruling on the petition filed by GroupMe, Inc./Skype Communications S.A.R.L. (“GroupMe”).

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