Category - "Telemarketing"

Inherently Individualized Issues of Fact Cause Court to Deny Dismissal and Certification in Case Targeting Health Care Calls

Depending on whether you’re a glass-half-full or glass-half-empty kind of person, plaintiff and defendant both won or both lost when a judge in the Northern District of Illinois recently denied in one fell swoop both the defendant’s motion for summary judgment and the plaintiff’s motion for class certification. Murtoff v. My Eye Doctor, LLC, 21-2607, 2024 WL 4278033 (N.D. Ill. Sept. 24, 2024).

In a case involving health examination reminder calls to someone who was not a current patient, the plaintiff alleged that she received unwanted telemarketing telephone calls from MyEyeDr. leaving pre-recorded voice messages to remind her that she was due for her annual eye exam, in violation of the TCPA. MyEyeDr. filed a motion for summary judgment, arguing that these calls were not telemarketing but rather fell under the Health Care Rule exception to the TCPA, which protects prerecorded healthcare calls (1) that concern a health-related product or service; (2) made by or on behalf of a health care provider to a patient with whom there is an established health care treatment relationship; and (3) that concern the individual health care needs of the patient recipient.

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Texas Federal Court Finds Prerecorded Calls to Schedule Pest Inspections Were Informational, Not Telemarketing

A Texas federal court recently granted summary judgment for the defendant in a TCPA putative class action, finding that prerecorded calls to schedule a pest inspection were informational rather than telemarketing. Bradford v. Sovereign Pest Control of TX, Inc., No. 4:23-cv-00675, 2024 WL 3851229 (S.D. Tex. Aug. 10, 2024). This ruling provides a helpful reminder for defendants to carefully assess the nature of prerecorded or autodialed calls in every case, given that informational calls require only “prior express consent” as compared to the detailed, written consent needed for telemarketing calls.

In Bradford, the plaintiff had entered into a two-year pest control service agreement, which the parties renewed for multiple one-year terms. The agreement provided for free annual inspections, with no renewal obligation, during both the initial term and each renewal term. If a customer could not schedule an annual inspection to take place until after the expiration of the initial (or renewal) term, the defendant offered a 30-day grace period to schedule the inspection.

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Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’

The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.

The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).

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TCPA Boundaries Drawn: Marketing Text Messages to Known Telephone Numbers Permitted

In Marina Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. (101 F.4th 176), the Second Circuit addressed critical questions regarding the definition of an “automatic telephone dialing system” (ATDS) and whether text messages fall under the TCPA’s prohibition against the use of an “artificial or prerecorded voice.”

Marina Soliman brought a putative class action against Subway, alleging that the company had violated the TCPA by sending her automated marketing text messages after she had opted out of receiving them. The United States District Court for the District of Connecticut dismissed her claims, concluding that the TCPA did not apply to Subway’s actions. Soliman appealed this decision, but the Second Circuit ultimately affirmed the district court’s ruling.

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Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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More TCPA Calling and Texting Restrictions Proposed by the FCC

At the Federal Communication Commission’s (“FCC”) June 8 Open Meeting, the Commissioners voted to adopt a new Notice of Proposed Rulemaking (“Notice”) designed to clarify and expand upon the ability of consumers to decide what calls or texts subject to the Telephone Consumer Protection Act (“TCPA”) they wish to receive.  The Notice addresses pending but unresolved petitions for declaratory rulings filed by a range of entities seeking clarification of a variety of TCPA policies.  The Notice also highlights the agency’s intention to adopt specific rules codifying stated FCC policies contained in prior orders so that consumer rights are “clear” and easy to understand.  Each of the areas addressed by the Notice could affect the compliance programs of callers and texters, and the Notice thus represents an opportunity to inform the FCC of practical consequences of its proposals before it acts to adopt new rules.

Revocation of Consent in “Any Reasonable Way”

In its 2015 Declaratory Ruling, the FCC stated that consumers who had provided prior express consent to receive autodialed or pre-recorded voice calls are free to revoke that consent through any reasonable means of notification to the calling or texting party.  The Notice proposes to formally adopt a rule incorporating that flexibility and prohibiting calling or texting parties from designating any exclusive means to revoke consent.  The proposed rule states that reasonable revocation methods “typically” include text messages, voicemail or email to any phone number or email address where the consumer “can reasonably expect” to reach the caller.  The Notice calls out the use of “STOP” as a widely recognized means of revoking consent and proposes that the FCC employ a presumption that such a message, if sent, it is to be treated as a revocation of consent message.  If text initiators do not allow or enable a reply to text function, then the FCC proposes that that entity be required to provide clear and conspicuous disclosure on each text as to how to revoke consent.

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Florida Senate Approves House Amendments to mini-TCPA

The Florida Senate passed HB 761 late yesterday by a 29-10 vote, less than a week after the bill sailed through the Florida House by a 99-14 vote. As we previously reported, passage of this bill paves the way for significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059). The bill must now be presented to the Florida Governor, who will have up to 15 days following presentment to sign or veto the bill. See Fla. Const., Art. III, § 8(a).

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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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FCC Releases Declaratory Ruling Addressing the TCPA Compliance Status of Ringless Voicemails

On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Declaratory Ruling), in which it determined that “ringless voicemail” to wireless phones requires prior consumer consent to transmit because it is a “call” made using an artificial or prerecorded voice and thus is covered under section 227(b)(1)(A)(iii) of the 1991 Telephone Consumer Protection Act (TCPA). The Declaratory Ruling was issued even though the petitioner, All About the Message, LLC (AATM) had requested withdrawal of its 2017 Petition for Declaratory Ruling seeking to have the FCC declare that ringless voicemail, based on the technology and the lack of direct charge to wireless consumers, is not subject to the TCPA and the agency’s implementing rules. Addressing AATM’s withdrawal request, the FCC stated that it believed a ruling was necessary to resolve a controversy and remove uncertainty about the status of ringless voicemail under the TCPA.

Codified in section 227 of the Communications Act of 1934, the TCPA addresses certain practices considered to be an invasion of consumer privacy or, in some instances, a risk to public safety. Section 227(b)(1)(A)(iii) prohibits making any non-emergency call using an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. AATM sought an FCC ruling that delivery of a voicemail message directly to a consumer’s cell phone voicemail is not covered by the TCPA. AATM relied on several arguments, but primarily claimed that its ringless voicemail message was not a “call” because its proprietary software creates a landline-to-landline session directly to the telephone company’s voicemail server without charge to the subscriber and is not shown as a call on any consumer bill.

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Second Circuit Diverges from Third, Holds that an Unsolicited Invitation to Participate in a Survey is Not Actionable Under the TCPA

The Second Circuit recently addressed whether a faxed invitation to participate in a market research survey is an “unsolicited advertisement” actionable under the TCPA.  In Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022), the Court of Appeals held that under the plain text of the TCPA, an offer to participate in a survey, without more, is not an advertisement because it does not communicate the “availability or quality of any property, goods, or services.”  Id. at 372.

The dispute arose from defendant Focus Forward LLC’s two faxes to plaintiff Bruce Katz, M.D., P.C., a medical services company.  Id. at 370.  The faxes offered $150 in exchange for participation in a market research study.  Id.  Plaintiff initiated a putative class action lawsuit in the Southern District of New York alleging violations of the TCPA, but the federal district court dismissed the complaint, agreeing with Defendant that an invitation to participate in a market research survey was not an unsolicited advertisement within the bounds of 47 U.S.C. § 227.  Id.

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