Category - "Text Messages"

The FCC Has Illegal and Scam Robotexting in its Sights, Proposed New Text Blocking Rules

For those regularly monitoring the FCC’s various TCPA dockets, you now have a new docket to follow: CG Docket No. 21-402. The FCC announced on September 27, 2022 that all Commissioners had voted to commence a new robotext proceeding, releasing the text of a Notice of Proposed Rulemaking (Notice) the same day. Comments and reply comments will be due 30 and 45 days respectively from the time a summary of the Notice is published in the Federal Register, which has not yet occurred as of the publication of this post.

In the Notice, the FCC states that it is receiving an increasing number of consumer complaints about fraudulent or scam texts and proposes to require wireless carriers to block “illegal” or “highly likely to be illegal” text messages at the network level “that purport to be from invalid, unallocated, or unused numbers, and numbers on a Do-Not-Originate (DNO) list.” If adopted, this blocking standard would be similar to the network-based call blocking that the FCC authorized in 2017 and has continued to refine in subsequent proceedings.

Continue reading “The FCC Has Illegal and Scam Robotexting in its Sights, Proposed New Text Blocking Rules”

Eleventh Circuit Applies TransUnion and Vacates Class Certification

The Eleventh Circuit recently decertified a TCPA settlement class because the class definition included members who could never have Article III standing under Eleventh Circuit precedent.  Drazen v. Pinto, — F.4th –, No. 21-10199, 2022 WL 2963470, at *4-7 (11th Cir. July 27, 2022).  The court applied the U.S. Supreme Court’s holding in TransUnion LLC v. Ramirez and ruled that all members of a Rule 23(e) settlement class must have Article III standing to recover damages.  Id. at *5-6 (citing TransUnion, 141 S. Ct. 2190, 2208 (2021)).  The Drazen court expressly rejected the proposition that plaintiffs with no standing in the Eleventh Circuit could be part of a nationwide class, even if they may have standing in another circuit.  Id.  As of the date of publication, Drazen is the first and only decision from a federal appellate court that analyzes TCPA claims under the TransUnion rubric.  Although the impact of Drazen outside of the Eleventh Circuit remains unclear, the case demonstrates how courts may analyze Article III standing issues in TCPA class actions going forward.

As readers of this blog are aware, the U.S. Supreme Court issued its decision in TransUnion, LLC v. Ramirez last summer.  The decision reaffirmed that plaintiffs must demonstrate a “concrete harm” to establish Article III standing to sue in federal court.  TransUnion, 141 S. Ct. at 2200.  Moreover, in footnote 4 of the TransUnion decision, the Court explicitly stated that it was not addressing the “distinct question whether every class member must demonstrate standing before a court certifies a class.”  Id. at 2208 n.4.

Continue reading “Eleventh Circuit Applies TransUnion and Vacates Class Certification”

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.”

Continue reading “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)”

District of Connecticut Rejects ATDS Allegations in Complaint Against Subway

The District of Connecticut recently dismissed a TCPA action against the Subway Franchisee Advertising Fund Trust (“Subway”) because plaintiff failed to allege that Subway used an ATDS to send text messages to her cell phone.  Soliman v. Subway Franchisee Advertising Fund Trust Ltd., No. 3:19-cv-592, 2022 WL 2802347 (D. Conn. July 18, 2022).  The court held that “[t]he TCPA is clear:  a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list.”  Id. at *3 (emphasis in original).  The ruling serves as yet another example of a dialing technology that does not meet the definition of an ATDS following the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171 (2021).

In Soliman, plaintiff alleged that she received a text message from Subway offering her a free bag of potato chips.  Id. at *1.  Plaintiff further alleged that she replied “STOP” to unsubscribe from the text messages but claimed that Subway texted her again a few days later.  Id. at *1.  Plaintiff subsequently filed a two-count class action lawsuit against Subway for negligently and intentionally violating the TCPA.  Id.  Subway filed a Rule 12(b)(6) motion to dismiss.  Id.

Continue reading “District of Connecticut Rejects ATDS Allegations in Complaint Against Subway”

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.

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

Court Rejects Healthcare Facility’s Use of Emergency Purpose Exception

The Middle District of Florida recently held that a defendant cannot invoke the “emergency purposes” exception to the TCPA if the defendant continues to send messages after the plaintiff has instructed the defendant to stop.  In Farhat v. Unique Healthcare Systems, Inc., the Plaintiff claimed that her healthcare provider had sent her four messages within a four-week period with regard to free COVID-19 testing at the Defendant’s locations.

Continue reading “Court Rejects Healthcare Facility’s Use of Emergency Purpose Exception”

Eighth Circuit Finds That System That Sends Texts to Stored Numbers is Not an ATDS, Rejects Plaintiffs’ Interpretation of Footnote 7 in Facebook v. Duguid

Last week, the Eighth Circuit affirmed a finding that a dialing system does not qualify as an ATDS if it randomly selects numbers from a stored list. See Beal v. Truman Road Dev. (8th Cir. Mar. 24, 2022). The decision explains that dialing equipment is not an ATDS if it does not produce those numbers (either randomly or sequentially) in the first place, and is notable for flatly rejecting a misreading of Facebook v. Duguid that plaintiffs have been peddling for nearly a year now.

The court’s analysis turns on the mechanics of the dialing system and plain language of the statute. The defendants were drinking establishments that use the “Txt Live” platform to send promotional text messages to numbers that were manually entered by the defendant’s employees. Specifically, the platform allowed employees to filter down to a target list of recipients based on demographic factors, select the number of potential customers to receive the message, draft or select the content of the message, and then send messages to designated recipients. To do so, it “shuffles the target contacts using a numerically based randomizer. If the number of people who meet the filtered criteria exceed the number of people to whom the message will be sent, Txt Live selects the recipients at the top of the randomized list first.” Id. at 3.

Continue reading “Eighth Circuit Finds That System That Sends Texts to Stored Numbers is Not an ATDS, Rejects Plaintiffs’ Interpretation of Footnote 7 in Facebook v. Duguid“

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.

Continue reading “Texts Regarding COVID Vaccine Eligibility Are Not Actionable Under TCPA, Texas Northern District Holds”

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.

Continue reading “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”

Northern District of California Confirms That Assigning “Random or Sequential IDs” to Previously Generated Numbers Is Not Autodialing

In the wake of the Supreme Court’s April 2021 Facebook v. Duguid decision, plaintiffs prosecuting class actions across the nation have been searching hard to mine other potential ambiguities in the TCPA to support allegations about the use of an ATDS. One area of focus has been on whether that term – which is defined as equipment that can “store or produce telephone numbers to be called, using a random or sequential number generator” – applies to equipment that assigns random or sequential identifiers to stored numbers that were not randomly or sequentially generated.

Continue reading “Northern District of California Confirms That Assigning “Random or Sequential IDs” to Previously Generated Numbers Is Not Autodialing”