Category - "Do-Not-Call Rules"

Eastern District of Missouri Finds Standing Issue with TCPA Cases When Plaintiffs do Not Request to be on Internal Do-Not-Call Lists

The United States District Court for the Eastern District of Missouri recently issued an opinion with significant implications for plaintiffs’ standing to allege violations of the TCPA under Article III.  In the case of Thompson v. Genesco, Inc. (2024 WL 81187), the court addressed the critical question of whether the plaintiff had Article III standing to bring his TCPA claim.

Dennis Thompson filed a lawsuit against Genesco, Inc. in Missouri state court, alleging that Genesco had unlawfully sent him unwanted marketing text messages in violation of the TCPA and its accompanying regulations. Genesco removed the case to federal court, and the court, sua sponte, ordered supplemental briefing to address whether Thompson had Article III standing to maintain his lawsuit.

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Ninth Circuit Finds That One Text Can Cause Concrete Harm, Remands for Decision Regarding Whether Minors Can Consent

Ever since the Supreme Court confirmed that the TCPA’s autodialer restrictions apply only to devices that generate numbers randomly or sequentially, the plaintiffs’ bar has been digging deep for new theories of liability to fill the void. One example of that is Hall v. Smosh Dot Com, in which the plaintiff posits that minors cannot provide consent for purposes of the TCPA, and as a result that calls to minors with DNC-registered numbers necessarily violate the statute. That theory is hard to square with both tort law (which tells us that minors consent to more intrusive things all the time) and contract law (which tells us that contracts with minors are voidable rather than void). But the Ninth Circuit recently handed Hall a procedural win in the case—albeit one that should end up being Pyrrhic.

The case arises from five text messages sent over the course of seven months. Undeterred by the fact that her teenage son had requested the messages, the Plaintiff filed suit—in a class action, of course—under the TCPA’s DNC provisions. See 47 U.S.C. § 227(c)(5). The trial court dismissed the case for lack of Article III standing, finding that the Plaintiff had failed to allege that she was either the “actual user” of the phone or the “actual recipient” of the messages. The Plaintiff appealed, arguing that she could have Article III standing even if she was neither of those things. The Ninth Circuit has now agreed, reversed the trial court, and remanded for further proceedings consistent with its opinion.

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Texas District Court Rejects “Influence Liability” Workaround to FCC Exemption for Research and Surveys

A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations.  Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.

In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times.  No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023).  Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website.  Id.  Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand.  Id.  Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata.  Id. at *2.

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Conflicting Decisions Illustrate Uncertainty as to Whether TCPA Extends to Text Messages

Two recent District Court opinions highlight an ongoing dispute as to whether the TCPA and its implementing regulations should apply to mobile (cellular) phones and text messages received thereon, as opposed to the more limited application of only traditional residential landlines.

The District Court for the Western District of Missouri recently denied a defendant’s motion to dismiss a TCPA claim, holding, among other things, that 47 C.F.R. § 64.1200(d) broadly applies to text messages just as it applies to telephone calls.  Eagle v. GVG Capital, LLC, No. 22-cv-00638-SRB, 2023 WL 1415615 (W.D. Mo. Jan. 31, 2023).  47 C.F.R. § 64.1200(d) protects consumers from receiving unsolicited telemarketing calls, stating that no person or entity may make such calls to a residential telephone subscriber unless procedures are put in place to maintain a list of those who request not to be contacted that meet a set of minimum standards.  See 47 C.F.R. § 64.1200(d).

In Eagle, the plaintiff sued Defendant GVG Capital, LLC, a marketing and lead generation company, on behalf of herself and three classes alleging multiple TCPA violations, including the delivery of solicitation text messages to the class despite their telephone numbers being on the National Do Not Call Registry (NDNCR) and alleging that those text messages did not include the sending defendant’s contact information.  The plaintiff alleged that she uses her cellphone as her residential telephone number and had it registered with the NDNCR in 2012.  In 2022, she began receiving text messages from a series of numbers asking if she was interested in selling her home and directing her to a real estate website, and plaintiff alleged that these messages did not contain the required contact information and disclosures prescribed by the TCPA.

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Recent Ninth Circuit Opinions Address Standing and the Meaning of ‘Automatic Telephone Dialing System’

The Ninth Circuit recently issued two noteworthy TCPA decisions.  Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space:  the definition of “automatic telephone dialing system” (“ATDS”).  Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers.  See Borden, 2022 WL 16955661, at *1.

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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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Southern District of New York Denies Motion to Dismiss Because Plaintiff Sufficiently Alleged That He Was a “Residential Subscriber”

The TCPA’s Do Not Call (DNC) regulations prohibit telephone solicitations to “residential telephone subscriber[s]” who have “registered [their] telephone number on the national do-not-call registry.” See 47 C.F.R. § 64.1200(c)(2). However, as we noted in a recent post, several district courts have found that the term “residential telephones,” as used in the DNC regulations, may include cell phones under certain circumstances, such as when cell phones are used primarily for “personal, family, and household” matters. See Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022) (collecting cases). Nonetheless, other courts have rejected this proposition. See id. at *2 (citing Callier v. GreenSky, Inc., EP-20-CV-00304, 2021 WL 2688622, at *6 (W.D. Tex. May 10, 2021)).

In Rose v. New TSI Holdings, Inc., the Southern District of New York recently held that a plaintiff alleged sufficient facts to survive a motion to dismiss arguing that plaintiff’s cell phone could not qualify as a “residential telephone.” No. 21-CV-5519, 2022 WL 912967 (S.D.N.Y. Mar. 28, 2022).  Specifically, plaintiff alleged that he received twelve unsolicited calls from 2018 through 2021 after he visited Boston Sports Club even though his number had been listed on the DNC Registry since 2004. He alleged that he received the messages even after he told defendant to stop calling/texting him at least five times, and that some of the calls included identical prerecorded promotional messages.

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Internal DNC Policies Not Prerequisite to Using EBR Defense, Ohio Southern District Holds

Earlier this month, the U.S. District Court for the Southern District of Ohio clarified that a TCPA defendant need not maintain an internal do-not-call list and policies in order to invoke the “established business relationship” defense for telemarketing calls to numbers on the national DNC registry.

By way of background, the TCPA prohibits businesses from making “telephone solicitations” to phone numbers on the national DNC registry.  47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c).  However, telemarketing calls and messages can be sent to such numbers where the caller has an “established business relationship” with the recipient.  47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(15)(ii).  The FCC has defined an “established business relationship” (“EBR”) as a “relationship formed by a voluntary two-way communication” regarding a telephone subscriber’s recent purchase of or inquiry about a product sold by the caller.  47 C.F.R. § 64.1200(f)(5).  A subscriber can terminate the EBR at any moment by making a clear and specific request for the calls and/or messages to stop.  Id. § 64.1200(f)(5)(i).  Separately, 47 C.F.R. § 64.1200(d) requires entities who place telemarketing calls to keep an internal list of individuals who have requested not to receive calls and to maintain policies to ensure that the list is honored.

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Texts Regarding COVID Vaccine Eligibility Are Not Actionable Under TCPA, Texas Northern District Holds

The U.S. District Court for the Northern District of Texas recently held that unsolicited text messages that simply inform recipients of the availability of a free COVID-19 vaccine are protected by the “emergency purposes” exception to the TCPA’s prior express consent requirement and also do not qualify as telephone “solicitations” prohibited by the FCC’s do-not-call (DNC) rules.

In Horton v. Tarrant County Hospital District, No. 4:22-CV-9-P, 2022 WL 702536 (N.D. Tex. Feb. 4, 2022), the plaintiff alleged that he received a single unsolicited text message from the defendant, a public hospital district, announcing that “everyone ages 12 and up is eligible for the COVID vaccine.” Mr. Horton alleged that the text was sent without his consent in violation of the TCPA’s prohibition on autodialed calls as well as the rule against solicitations to telephone numbers on the national DNC list.

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Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds

Last week, the U.S. District Court for the Northern District of Texas held that mobile phones may qualify as “residential telephones” when used (as the Complaint alleged) primarily for “personal, family, and household use,” and thus be subject to the TCPA’s do-not-call rules (47 C.F.R. §§ 64.1200(c) & (d)).  This issue has sewn disharmony among federal district courts and may draw attention from higher courts.  But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), that have agreed that calls specifically directed to persons on a pre-produced list (like plaintiff) are not calls made using a “random or sequential number generator” and thus are not subject to the TCPA’s prior express consent requirement for calls made using an ATDS.

In Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022), the plaintiff alleged that, over the course of last year, he received eight unsolicited phone calls and six SMS text messages on his cell phone from a number he didn’t recognize.  Hunsinger picked up one of the calls and spoke with a representative for the defendant, to whom Hunsinger gave his email address.  Hunsinger subsequently received several calls and texts from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction.  These calls and texts were sent using an ATDS, Hunsinger alleged.  At all relevant times, Hunsinger’s number was on the national DNC list.  Id. at *1.

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