A court in the District of Oregon recently granted a defense motion to deny class certification, largely because the issue of whether the putative class representative’s phone number was “residential”—a prerequisite to TCPA protection—would predominate the litigation.
In Mattson v. New Penn Financial, LLC, the district court considered plaintiff’s objections to the magistrate judge’s findings and recommendation regarding defendant’s motion to deny class certification. No. 3:18-CV-00990-YY, 2021 WL 2888394, at *1 (D. Or. July 9, 2021). The magistrate judge had concluded that plaintiff was an inadequate class representative because questions remained concerning whether he alleged a sufficient injury in fact to bring a TCPA claim, and also because issues individual to the plaintiff would predominate the litigation.
The Eastern District of Texas recently dismissed a plaintiff’s TCPA claim in Cunningham v. Matrix Financial Services, LLC, No. 4:29-cv-896 (E.D. Tex. Mar. 31, 2021) for lack of subject matter jurisdiction.
This decision came after the District Court rejected the magistrate judge’s recommendation that subject matter jurisdiction was proper. The recommendation focused on the Supreme Court’s recent decision in Barr v. American Association of Political Consultants (“AAPC”), 140 S. Ct. 2335 (2020), which held that the government-debt exception violated the First Amendment. The magistrate judge noted that, following AAPC, the majority of district courts had held that federal courts retained subject matter jurisdiction over TCPA claims brought under § 227(b)(1)(A)(iii) during the exception’s existence. Those that did not were deemed unpersuasive given that “[t]he Supreme Court in AAPC explicitly found that the government-debt exception in the TCPA was severable from the remainder of the statute and declined to strike down the TCPA’s entire robocall ban.” Further, the magistrate judge reasoned that “[t]he dispositive inquiry lies in . . . [footnote twelve of AAPC]”, which stated that the AAPC Court’s “decision does not negate the liability of parties who made robocalls covered by the robocall restriction.”
Recently, the Northern District of Illinois dismissed a TCPA putative class action without prejudice, finding that faxes inviting recipients to attend free continuing education veterinary seminars did not constitute advertisements on their face because they did not promote products or services and they were not sufficiently alleged to be a pretext for an underlying commercial purpose. Ambassador Animal Hosp., Ltd. v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021 WL 633358 (N.D. Ill. Feb. 18, 2021).
On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.
In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient. See Pub. L. No. 109-21, 119 Stat. 359 (2005). The FCC has defined the “sender” of a fax for liability purposes as any “person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10) (2019). The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax. See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).
A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).
In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.
Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.
As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.