Today marks ten years and counting of the FCC’s revised TCPA rules—and, not coincidentally, of this blog. Over the last decade, more than 50 contributors have shared more than 500 posts about the statute’s restrictions, the FCC’s rules and regulations, the states’ enactment of so-called “mini” TCPAs, and the many twists and turns in the seemingly endless stream of litigation—much of it concocted by a colorful cast of recurring characters—arising under all of them. We have enjoyed sharing our insights and meeting our readers, and we can’t wait to see what the next ten years will bring.
Another Day, Another ATDS Suit Dismissed in E.D. Pa.
Plaintiff Andrew Perrong is no stranger to the Eastern District of Pennsylvania, and on September 18, 2023, yet another of Perrong’s suits was partially dismissed on ATDS grounds. Perrong v. Bradford, et al., No. 2:23-cv-00510, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023). You can read our prior coverage of Perrong decisions here and here.
In this instance, Perrong filed a TCPA action against Pennsylvania House of Representatives member Matthew Bradford; he later filed an Amended Complaint adding Cleo Communications, LLC, which placed the calls on behalf of Representative Bradford. Perrong alleged that in 2019 and 2020, he received five phone calls, four of which were not answered or were answered to dead air. A fifth phone call included a recording of Representative Bradford, inviting Perrong to participate in a virtual information session on opportunities to connect Pennsylvanians to healthcare coverage. Perrong asserted three TCPA claims against Representative Bradford and Cleo Communications: the placing of a prerecorded message, use of an ATDS, and the placing of a telemarketing call.
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Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes
The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if the fax also refers to a related offer to sell another product or service. 2023 WL 509070, *6 (7th Cir. 2023).
Smith is a decision driven by its particular facts. The plaintiff, a chiropractor1, received two unsolicited faxes from First Hospital Laboratories (FHL), a company that provides health monitoring and screening services through a network of medical providers who act as independent contractors. Id. at *1. The faxes invited plaintiff to join FHL’s network of preferred medical providers. Id. The faxes also stated that FHL would pay plaintiff a fixed rate for each service he rendered to one of FHL’s clients. Id. FHL would refer clients to the plaintiff only if he agreed to allow FHL to invoice the clients directly for the services and neither attempted to obtain more than the fixed rate nor disclosed to the clients the fixed rates that FHL was paying the plaintiff for the services. Id. at *4. The clear implication was that FHL would profit by charging the clients more than the fixed rate it was paying the plaintiff to render the services. Id.
Eleventh Circuit Expands on Drazen II, Holding that an Unwanted Text is Sufficient for FTSA Standing
In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) for his receipt of five unsolicited telemarketing text messages. Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).
In reaching that conclusion, the Eleventh Circuit applied its recent en banc decision in Drazen II, which held that a single unwanted illegal telemarketing text message is sufficient to allege a concrete injury under the TCPA. See Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc). See our prior discussion of Drazen II here.
Drazen II explained that “the Constitution empowers Congress to decide what degree of harm is enough [for standing] so long as that harm is similar in kind to a traditional harm.”
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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Eleventh Circuit Overturns Salcedo, Holding that One Text is Sufficient for TCPA Standing
In a unanimous en banc decision, the Eleventh Circuit recently held that “a single unwanted, illegal telemarketing text message” is sufficient to allege a concrete injury under the TCPA. Drazen v Pinto, No. 21-10199, 2023 WL 4699939 (11th Cir. July 24, 2023) (en banc).
Previously, the leading Eleventh Circuit precedent on Article III standing in text-message cases held that a plaintiff’s alleged receipt of a single unsolicited text in violation of the TCPA “d[id] not state a concrete harm that meets the injury-in-fact requirement of Article III.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). See our prior discussion of Salcedo here. Based on Salcedo, an Eleventh Circuit panel previously dismissed the Drazen appeal for lack of jurisdiction, holding that the class definition did not meet Article III standing requirements because it included individuals who had received only a single text message. See our prior discussion of the Drazen panel decision here. The Salcedo opinion made the Eleventh Circuit an outlier of one, with every other federal appellate court to consider the question reaching the opposite conclusion. See Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690 (5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (Barrett, J.); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).
E.D. Pa. Dismisses Serial Plaintiff’s TCPA Case on ATDS Grounds
On July 18, 2023, the United States District Court for the Eastern District of Pennsylvania dismissed a TCPA claim filed by serial Plaintiff, Andrew Perrong. Perrong v. Montgomery Cnty. Democratic Comm., No. 22-4475, 2023 WL 4600423 (E.D. Pa. July 18, 2023). You can read our prior coverage of Perrong decisions here and here.
The present case centers around three phone calls Perrong received from the Montgomery County Democratic Committee and its associates. Perrong claimed that Defendants violated the TCPA by using an ATDS to contact him. The Defendants moved to dismiss the case, arguing that Perrong’s complaint failed to state a claim because the device at issue randomly or sequentially dialed phone numbers from a preexisting list (such as a list of registered voters), rather than randomly producing phone numbers itself, and therefore did not qualify as an automatic telephone dialing system.
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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.
Court Rejects Habitual TCPA Plaintiff’s Procedural Gamesmanship
In a recent condemnation of procedural “gamesmanship of the lowest order,” District Judge Michael M. Baylson not only denied a plaintiff’s request for a default judgment and for sanctions, but also sua sponte ordered the plaintiff to show cause why sanctions should not be issued against him. The case is Perrong v. DVD II Group, LLC, 2023 WL 3229934 (E.D. Pa. May 3, 2023).
Plaintiff Andrew Perrong, who the court described as “a habitual litigant with extensive familiarity with the TCPA and court proceedings,” filed a TCPA action against Defendants DVD II Group, LLC and Kevin Knasel. Mr. Perrong hired a process server, who successfully served Defendants on March 13, giving them until April 3 to respond according to the federal rules.
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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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