Category - "Recycled Numbers"

District Court Dismisses TCPA Claims Based on Good Faith Defense

The U.S. District Court for the Eastern District of North Carolina recently adopted a magistrate judge’s recommendation that summary judgment be entered in favor of a defendant because it had a good faith belief that it had consent to call the plaintiff’s number.

In Danehy v. Time Warner Cable Enterprises, Case No. 14-cv-133 (E.D.N.C.), a pro se plaintiff (“Plaintiff”) alleged that Time Warner violated the TCPA by using an automated telephone dialing system (“ATDS”) to call his cellular phone that was registered on the national do-not-call registry. The phone number at issue had previously belonged to a Time Warner customer who had provided the phone number as a secondary contact for Time Warner to use when he could not be reached at his primary phone number. Time Warner had made calls to, and received calls from, the customer using the number numerous times in the past. The number was eventually assigned to Plaintiff in August or September 2013.

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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.

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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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Twitter Sued in TCPA Class Action for Messaging Recycled Wireless Numbers

Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).

The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.

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Eleventh Circuit Rejects “Intended Recipient” Interpretation of TCPA’s “Called Party” Language

The Eleventh Circuit recently ruled that the TCPA’s prohibition on prerecorded calling applies to wireless numbers that have been reassigned from a consenting subscriber to a new, presumably nonconsenting one, regardless of the caller’s knowledge of the reassignment. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). Currently, the Act permits businesses to place prerecorded telemarketing calls to wireless subscribers with “the prior express consent of the called party,” see 47 U.S.C. § 227(b)(1)(A), but does not specify whether the term “called party” refers to the intended recipient of the call or the actual recipient.

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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.

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Court Stays TCPA Class Action until FCC Rules on Definition of “Called Party”

The Eastern District of California recently granted a motion to stay proceedings under the primary jurisdiction doctrine in Matlock v. United Healthcare Servs., Inc., No. 13-2206, 2014 U.S. Dist. LEXIS 37612 (E.D. Cal. Mar. 20, 2014). It stayed the proceedings until the FCC rules on United Healthcare’s expedited petition to clarify the definition of “called party” under the TCPA’s prior express consent provision.

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TCPA Petitions Keep Pouring Into the FCC

As previously covered in other TCPA blog posts, the FCC maintains a range of TCPA rules addressing certain key elements of telemarketing and even non-telemarketing call activities that can implicate routine interactions between companies and their customers or prospective customers. The proper scope and interpretation of some of these rules continue to be the subject of newly filed petitions for clarification, declaratory ruling or even requests for outright waiver of certain FCC rules. We highlight here several of the more recent additions to the FCC’s already large compliment of pending TCPA petitions.

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