Category - "Text Messages"

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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FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance

  • HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations.
  • HB 761 also stated that it should be applied retroactively to cases that were styled as class actions so long as a class had not been certified before HB 761’s effective date.
  • That retroactivity provision has caused a split between Florida’s federal courts and its state courts.
  • Two federal courts have applied HB 761 retroactively, dismissing class actions because a class had not been certified before HB 761’s effective date.
  • But two Florida state courts have refused to apply HB 761 retroactively, holding that applying a pre-suit notice requirement retroactively would violate due process.
  • Defendants will likely respond by invoking HB 761 retroactively only against unnamed class members (e.g., by striking class allegations) to avoid due process issues.
  • Relatedly, Florida state courts have sent mixed signals on TCPA/FTSA standing.
  • Until appellate courts provide clarity, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.

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Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues

A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

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Ninth Circuit “Voices” Its Rejection of Plaintiff’s Attempt to Expand TCPA

The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA.  See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug. 8, 2023).

There, the plaintiff alleged that the defendant had violated the TCPA by sending text messages with promotional offers without her consent.  Specifically, she alleged that the defendant had sent her a message stating:  “Hiya Lucine, you are a valuable customer.  In these tough times, let us [] reimburse [you] for your shopping needs.”

As you may recall, the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a [ ] cellular telephone service. . . .”  47 U.S.C. § 227(b)(1)(A)(iii).

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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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FTSA Does Not Apply to Calls Selling Services to Businesses

The Middle District of Florida partially rejected a plaintiff’s motion for entry of final default judgment in Brown v. Care Front Funding, No. 8:22-cv-02408-VMC-JSS, 2023 U.S. Dist. LEXIS 60879 (M.D. Fla. Apr. 6, 2023), report and recommendation adopted, 2023 U.S. Dist. LEXIS 72933 (M.D. Fla. Apr. 26, 2023).

The plaintiff alleged that, despite being placed on the National Do-Not-Call Registry, she received three unsolicited calls from the defendant for the purpose of persuading her to obtain a business loan. After the defendant failed to respond to her complaint, the plaintiff moved for entry of default and then entry of default judgment. Magistrate Sneed found that the plaintiff had failed to allege that the calls were made for the solicitation of a sale of or extension of credit for any “consumer goods or services” for purposes of finding liability under the FTSA. The statute defines “consumer goods or services” as “real property or tangible or intangible personal property that is normally used for personal, family or household purposes . . . and any services related to such property.” Fla. Stat. § 501.059(1)(c). Magistrate Sneed noted that courts have interpreted similar statutes that provide for “consumer” protections related to goods and services that are primarily for personal, family, or household purposes to exclude goods and services in the business context.

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Legislature Poised to Overhaul Florida’s mini-TCPA

The Florida Legislature is moving quickly to pass significant remedial amendments to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) before the end of the legislative session this Friday.  Should the proposed amendments succeed, they would restrict the scope and substance of the statute in several important ways.

First, the amendments would narrow the categories of equipment that are covered by the statute.  Whereas the current autodialing restrictions apply to “automated system[s] for the selection or dialing of telephone numbers,” the amended autodialing restrictions would apply only to “automated system[s] for the selection and dialing of telephone numbers” (emphasis added). Note, however, that even the amended version would restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

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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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DNJ Enters Default Judgment on Breach of Contract Counterclaim in Manufactured TCPA Lawsuit

The United States District Court of New Jersey recently granted default judgment to Defendant Slack Technologies (“Defendant”) for its breach of contract counterclaim against Plaintiff Gino D’Ottavio (“Plaintiff”), who deliberately sent himself over 1,500 text messages but represented that the texts were unsolicited and sent improperly by Defendant.

In D’Ottavio v. Slack Technologies, No. 1:18-cv-09082-NLH-AMD, 2022 WL 15442211 (D. N.J. Oct. 26, 2022), Plaintiff filed a lawsuit against Defendant for allegedly knowingly and/or willfully and negligently violating the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Plaintiff asserted he received numerous unsolicited text messages after signing up for Defendant’s service. Defendant denied Plaintiff’s claims and asserted that Plaintiff abused a feature on Defendant’s website. Defendant specifically asserted, “Plaintiff is a serial filer of TCPA claims who personally solicited 1,590 text messages from Defendant by entering his own phone number and clicking a ‘SEND LINK’ button in an effort to manufacture a lawsuit.” Defendant brought four counterclaims against Plaintiff: (1) willful and wanton misconduct; (2) common-law fraud; (3) breach of express contract; and (4) breach of the implied covenant of good faith and fair dealing.

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