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”).
Category - "Consent"
FCC Grants Limited Package Delivery Notification “Prior Express Consent” Exemption
On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.) In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.
N.D. Ohio Finds Putative Fax Blast Class Action Fails to Meet Commonality Requirement
A district court in the Northern District of Ohio recently denied a plaintiff’s motion for class certification in a TCPA blast fax case, finding that the proposed class failed to meet the commonality requirement under Federal Rule of Civil Procedure 23(a)(2). Specifically, the court noted that “the proposed class includes entities that requested the facsimiles and/or had prior business relations” with the defendants and that the faxes sent to those entities did not violate the TCPA. A copy of the opinion in Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., et al., No. 3:12 CV 2257, 2014 WL 1224418 (N.D. Ohio Mar. 24, 2014), is available here.
Court Finds That System Is Not An ATDS Unless It Can Generate (As Opposed To Merely Dial) Numbers On A Random or Sequential Basis
Judge Baylson of the Eastern District of Pennsylvania recently granted Yahoo! summary judgment in a case challenging Yahoo’s automatic email to text alert system because it did not use an automatic telephone dialing system (“ATDS”) when it forwarded emails as text messages. In doing so, he applied the plain meaning of the statutory definition of ATDS, rejected an FCC opinion that had purported to broaden it, and disagreed with Judge Curiel in the Southern District of California, who denied a similar motion by Yahoo! just weeks ago. See Dominguez v. Yahoo!, Inc., No. 13-1887, slip op. (E.D. Pa. Mar. 20, 2014); Sherman v, Yahoo!, Inc., No. 13-0041, slip op. (S.D. Cal. Feb. 3, 2014). The decision is important because it limits the definition of ATDS to those systems that can generate (as opposed to merely dial) a list of numbers on a “random or sequential” basis.
Court Holds that Providing Cellphone Number for an Online Purchase Constitutes “Prior Express Consent” Under TCPA
A federal district court in California recently ruled that a consumer who voluntarily provided a cellphone number in order to complete an online purchase gave “prior express consent” to receive a text message from the business’s vendors under the TCPA. See Baird v. Sabre, Inc., No. CV 13-999 SVW, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014).
JPML Centralizes TCPA Class Actions in the Northern District of West Virginia
The Judicial Panel on Multidistrict Litigation (JPML) recently centralized four putative class actions asserting that the defendants (Monitronics International, Inc. and its agents) violated the TCPA by making telemarketing calls to numbers on the national Do Not Call Registry or to persons from whom they did not have consent. See In Re Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL No. 2493 (Dec. 16, 2013). A copy of the JPML’s decision is available here.
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Plaintiff Withdraws Appeal Before Ninth Circuit Can Review Order Dismissing TCPA Class Action
As we previously reported, Plaintiff David Emanuel recently took an appeal from the Central District of California’s dismissal of a class action asserting that the Los Angeles Lakers violated the TCPA by sending text messages without the recipients’ consent. The trial court dismissed the case with prejudice after finding that the plaintiff had consented to the text message by sending the Lakers a text message of his own, and had parroted the definition of an ATDS rather than pleaded any facts tending to show that the Lakers had actually used one. See Emanuel v. L.A. Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013). The plaintiff then took an appeal in which Twitter and Path filed a notable amicus brief that railed against the veritable cottage industry of plaintiffs’ lawyers that is transforming “a statute intended to curb vexatious telemarketing” into a “vehicle for vexatious lawsuits.”
On New Year’s Eve, the plaintiff filed short “Notices of Settlement” informing both the trial court and Ninth Circuit that “this case has been settled in its entirety, on an individual basis” and that “the parties anticipate filing a Joint Motion for Dismissal with prejudice as to the named plaintiff and without prejudice as to the putative class within 45 days.” As of today, no such Motion appears on the Ninth Circuit or Central District of California dockets and (not surprisingly) the terms of the individual settlement have not been disclosed. So while the Central District of California’s decision still stands, a Ninth Circuit decision adopting its reasoning will unfortunately have to wait for another day.
Say Goodnight, Facey: Twitter, Path File Amicus Brief in Ninth Circuit TCPA Appeal
The Los Angeles Lakers found allies recently in Twitter and Path, when the social media companies sided with the Lakers to oppose an appeal from a dismissal of a putative class action asserting TCPA claims based on allegedly unsolicited text messages. See Emanuel v. The Los Angeles Lakers, Inc., No. 13-55678 (9th Cir.)
During a 2012 preseason game, the Lakers invited patrons to “TEXT your message to 525377” if they wanted to have a personal message displayed on the Staples Center jumbotron. David Emanuel did just that, sending a text message that read: “I love you Facey. Happy Date Night.” He then received a text message from the team that advised him that the team had received, but might not display, his note: “Thnx! Txt as many times as you like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info.” (Plaintiff then texted “STOP” and received another text message confirming receipt of his request, which he does not claim violated the TCPA.)
FCC Opportunities for TCPA Rule Revision or Interpretation
The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling. Immediately upon the federal government’s reopening, two additional petitions were filed. While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.
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New TCPA Rules Take Effect on October 16, 2013
The Telephone Consumer Protection Act of 1991 (“TCPA”)[1] places certain restrictions on telemarketing calls, text messages, and faxes. It has long been a favorite of the plaintiffs’ bar because it provides for statutory damages of $500 to $1500 per violation,[2] which in the aggregate can lead to substantial windfalls for plaintiffs. TCPA violations (even innocent ones) can place companies at significant risk and TCPA litigation has skyrocketed as a result.[3]
Last year, the Federal Communications Commission (“FCC”) added fuel to the fire by amending its TCPA rules and further restricting telemarketing calls.[4] The most significant of those amendments – which narrow and eliminate key statutory exemptions – will take effect tomorrow, on October 16, 2013.
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