This is the second of two posts discussing the Third Circuit’s recent TCPA decisions. This one, Dominguez v. Yahoo, Inc., No. 14-1751 (3d Cir.), concerns the proper interpretation of the term “automatic telephone dialing system” (“ATDS”), which is front and center in the consolidated appeal from the FCC’s July 10th Declaratory Ruling and Order.
Category - "Automatic Telephone Dialing System"
Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff’s Conclusory ATDS Allegations
The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.
Web Messaging Platforms After The FCC’s Declaratory Ruling
While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).
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What You Need to Know About the FCC’s July 10th Declaratory Ruling on the Telephone Consumer Protection Act (TCPA)
A sharply divided FCC late Friday issued its anticipated TCPA Declaratory Ruling and Order (the “Declaratory Ruling”). This document sets forth a range of new statutory and policy pronouncements that have broad implications for businesses of all types that call or text consumers for informational or telemarketing purposes. While some of its statements raise interesting and in some cases imponderable questions and practical challenges, this summary analysis captures the FCC’s actions in key areas where many petitioners sought clarification or relief. Certainly there will be more to say about these key areas and other matters as analysis of the Declaratory Ruling and consideration of options begins in earnest. There will undoubtedly be appeals and petitions for reconsideration filed in the coming weeks. Notably, except for some limited relief to some callers to come into compliance on the form or content of prior written consents, the FCC’s Order states that the new interpretations of the TCPA are effective upon the release date of the Declaratory Ruling. Requests may be lodged, however, to stay its enforcement pending review.
FCC Chairman Proposes to Clarify TCPA Rules at June Meeting
FCC Chairman Tom Wheeler released a fact sheet and issued a blog post this week announcing that he had circulated a proposed order that would rule on the numerous petitions that companies have filed with the FCC seeking clarity on the TCPA rules. According to the Chairman, his proposal reflected in the draft order would “close loopholes and strengthen consumer protections already on the books.” The FCC is expected to vote on the Chairman’s proposal at its monthly meeting currently scheduled for June 18, 2015.
Although details have not been made public, the statements from Chairman Wheeler provide some insight as to what he has proposed:
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Courts Confirm Importance Of Human Intervention
A critical issue under the TCPA is the extent to which the statute applies to mobile text messaging platforms. As evident from its title, Congress intended that the TCPA would protect consumers from unsolicited telephone calls, as placed through automated telephone dialing systems (“ATDS”). As early as 2003, the FCC decided that text messages are “calls” under the TCPA, but has not yet addressed the corollary issue of when and whether a text messaging platform might be considered an ATDS.
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Fail-Safe Class Fails in the Eastern District of Pennsylvania
In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity National Information Services (“FIS”) and Complete Payment Recovery Services (“CPRS”). Id. at *1-2. Zarichny alleges that the defendants called her eleven times because they incorrectly believed that she owed a debt based on her alleged failure to return textbooks that she rented. Id. at 7-8. In her complaint, Zarichny alleged that the Defendants deliberately harassed her by calling at inconvenient times. Id. at 9. Zarichny alleged that both corporations violated the TCPA and the Fair Debt Collections Practices Act (the “FDCPA”).
Fidelity and CPRS brought a motion to dismiss Zarichny’s complaint and a motion to strike her class allegations, which the court granted in part and denied in part.
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You Still Can’t Violate the FDCPA by Complying With It…
In Gomez v. Oxford Law, 3:14-cv-00477, 2015 U.S. Dist. LEXIS 345, * 3 (M.D. Pa. Jan. 5, 2014), Ninouska Gomez filed suit under the Fair Debt Collection Practices Act (the “FDCPA”) after receiving a message from Oxford Law, which used an autodialer to leave the message. In their statement of undisputed facts, Gomez and Oxford Law agree that Gomez heard the following message: “… please hang up or disconnect. If you are Gomez, Vinouish please continue to listen to this message. There will now be a three second pause in this message.” The message was designed to comply with 15 U.S.C. § 1692c(b), the portion of the FDCPA that prohibits debt collectors from revealing information about a debtor to third parties.
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Pending TCPA Petitions (Grouped by Primary Subject Matter)
As 2015 begins, we thought that providing a roundup of and the links to pending FCC TCPA petitions might be useful. The list includes most pending petitions filed since the FCC’s revised TCPA rules came into effect, with the exclusion of the many “blast fax” petitions for retroactive relief. We have grouped the petitions by primary subject matter (consent, ATDS definition, or other). We will update this list periodically.
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Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard In TCPA Case
In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. See Hunter v. Diversified Consultants, Inc., No. 8:14-cv-2198, 2014 U.S. Dist. LEXIS 165355 (M.D. Fla. Nov. 26, 2014). The complaint contained only the following factual allegations: First, that “[d]uring the past 48 months prior to the filing of this complaint, Defendant contacted Plaintiffs’ [sic] cell phone without express permission with an automated dialing system”; and second, “Defendant called Plaintiffs’ [sic] cell phone intentionally and repeatedly, without express permission and with an automated telephone dialing system…” Id. at *2.