On October 6, 2017, the FCC issued a Public Notice that seeks comment on a Petition that was recently filed by the Credit Union National Association. Specifically, the Public Notice seeks comment on whether it should “adopt an established business relationship exemption from the [TCPA’s] prior-express-consent requirement for informational autodialed or artificial- or prerecorded-voice calls (including text messages) made by or on behalf of credit unions to their members’ wireless phone numbers,” or, alternatively, whether it should “exercise its statutory authority to exempt from the TCPA’s prior-express-consent requirement credit union informational calls made to its members’ wireless phone numbers that are in fact free to the called party.” Continue reading “FCC Issues Public Notice Regarding Requested TCPA Exemptions for Credit Unions”
Category - "Consent"
Eleventh Circuit Holds That Revocation of Consent Can Be Partial, Will Be Factual and Contextual
Last week the Eleventh Circuit held that a consumer can revoke her consent not only orally but also partially. See Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017). The rule it announced would be a double-edged sword that makes it more difficult not only for defendants to comply with the TPCA, but also for plaintiffs to satisfy Rule 23.
The plaintiff in Schweitzer provided her cellular telephone number—and, by doing so, her consent to be called at that number—when she applied for a card from the defendant. See Opinion at 3. When she failed to make timely payments on that credit card a year later, the defendant allegedly placed “hundreds” of “automated” calls regarding her debt. The plaintiff answered at least two of those calls. Id. During the first, she said “And, if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” Id. at 4. During the second, she said “Can you just please stop calling? I’d appreciate that, thank you very much.” Id. The defendant continued calling after the first exchange, but stopped calling after the second. Id. Continue reading “Eleventh Circuit Holds That Revocation of Consent Can Be Partial, Will Be Factual and Contextual”
District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing
As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading “District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing”
Courts Rein In TCPA “Revocation Of Consent” Claims
In TCPA Blog’s latest column for Law360, Mike Daly and Dan Brewer discuss the increasingly common “revocation of consent” claim. After the FCC held that consent can be revoked through “any reasonable method,” businesses found themselves struggling to comply with that directive, and plaintiffs found themselves with yet another “gotcha” claim to assert:
The two years that followed the FCC’s ruling have been marked by a dramatic uptick in what had already been a staggering number of TCPA filings, particularly “revocation of consent” claims of the sort predicted by Chairman Pai. Entrepreneurial plaintiffs have even taken to manufacturing such claims by ignoring prompts to text “STOP” and replying instead with “halt,” “cease,” “desist,” “discontinue,” “refrain,” or some other response that is designed to slip through the sender’s automated system for recognizing and registering revocations of consent. Although such contrivances are anything but “reasonable,” plaintiffs know that defending such claims are not without cost or inconvenience, and businesses continue to receive complaints and demand letters every day.
The article then details how a number of courts have started to push back on such claims, for example because the attempt to revoke consent was not “reasonable,” or because consent had been provided in a bilateral contract and therefore could not be unilaterally revoked.
Contracts 101: Second Circuit Holds That Black Letter Contract Law Precludes Revocation of Consent Claims under the TCPA
The explosion of litigation under the Telephone Consumer Protection Act (“TCPA”) has continued through the second quarter of 2017. Businesses have been anxiously awaiting a ruling from the D.C. Circuit in the appeal of the Federal Communications Commission’s (“FCC”) July 2015 Declaratory Ruling and Order as well as reforms from the FCC itself. As the wait continues, promising developments have been emerging from the courts. On June 22, 2017, the Second Circuit—in a common sense and practical opinion in Reyes v. Lincoln Auto. Fin. Servs., No. 16-2104 (2d Cir.)—acknowledged that contract is king and that a party cannot unilaterally modify its terms. In affirming summary judgment in favor of the defendant, the court cited the Restatement (Second) of Contracts and explained that “[i]t is black letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.” Its opinion in this TCPA action has significant implications for businesses that have standard contracts with their customers. And it is a welcome step in the right direction. Continue reading “Contracts 101: Second Circuit Holds That Black Letter Contract Law Precludes Revocation of Consent Claims under the TCPA”
Revocation of Consent Must Be Reasonable and Recollected
Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading “Revocation of Consent Must Be Reasonable and Recollected”
Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo
We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading “Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo”
Are Insurance Renewal Notifications Telemarketing? Maybe.
As discussed here, the Central District of California recently granted summary judgment in favor of an insurance company after finding that a prerecorded call to the insured’s mobile phone, which reminded her to review her health plan options for the following year, was not telemarketing and therefore did not require “prior express written consent.” See Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. SACV 16-00108-CJC-KES (C.D. Cal. Jan. 13, 2017).
But just a few weeks ago, a different judge in the Central District reached the opposite conclusion in a similar case, and denied the defendant’s motion to dismiss. See Flores v. Access Ins. Co., No. 2:15-cv-02883-CAS-AGR (C.D. Cal. Mar. 13, 2017) (available here). These two decisions illustrate how courts continue to grapple with the distinction between “telemarketing” and “informational” calls. Continue reading “Are Insurance Renewal Notifications Telemarketing? Maybe.”
Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition
The initial comments are in on the Petition of serial plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support. Continue reading “Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition”
Ninth Circuit Rules on Standing, Revocation of Consent
In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading “Ninth Circuit Rules on Standing, Revocation of Consent”