Texas District Court Joins the Third, Sixth, and Eleventh Circuit Courts of Appeal, Permitting a Private Right of Action for Violation of Section 64.1200(d)

The Northern District of Texas, in Powers v. One Technologies, LLC, joined its sister courts and the Third, Sixth, and Eleventh Circuit Courts of Appeal to hold that 47 C.F.R. § 64.1200(d), which prohibits certain telemarketing communications to “residential telephone subscriber[s]” without properly maintaining a list of persons on the national do-not-call list, provides a private right of action under the TCPA. 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022).

The plaintiffs sued under Section 64.1200(d), alleging that One Technologies violated the TCPA when the plaintiffs received unsolicited, unlawful text messages.  Specifically, they alleged that One Technologies did not have or maintain “a procedure for maintaining a do-not-call list.”

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Proposed Federal TCPA Legislation Offers a New and Broad ATDS Definition

On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”

The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.”  The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.

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An Indiana District Court Foreshadows a Split in Authority as to Personal Liability of Corporate Officers

The District Court for the Northern District of Illinois, in Black v. First Impression Interactive, Inc., No. 21 C 3745, 2022 WL 169652 (Jan. 19, 2022), denied a motion to dismiss a TCPA claim and, in so doing, highlighted a potential split among authorities as to the extent of personal liability for corporate officers and employees.

Plaintiff brought suit against two individuals, “the only officers and employees of First Impression,” a defunct corporation that had dissolved prior to the lawsuit.  Id. at *1.  Because First Impression had dissolved and the defendants were named individually, the court considered three theories of personal liability:  “(1) ʻvicarious liability’; (2) ‘relief defendants’; and (3) ‘personal participation.’”  Id. at *2.

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