FCC Denies Petition by Mortgage Bankers Association to Exempt Certain Mortgage Servicing Calls from Prior Express Consent Requirement

On November 15, the FCC’s Consumer and Governmental Affairs Bureau denied a petition by Mortgage Bankers Association (MBA)[1] that sought an exemption from the FCC’s prior express consent requirement for non-telemarketing residential mortgage servicing calls to wireless numbers. In its Order, the Bureau concluded that MBA had failed to show (1) that the calls om question would be free of charge to consumers; and (2) that the parties seeking relief should be able to send non-time-sensitive calls to consumers without their consent.[2]

The Bureau’s Order explained that the TCPA “reflects Congress’ recognition of the potential costs and privacy risks imposed on wireless consumers from the use of autodialer equipment, which can generate large numbers of unwanted calls,” and accordingly, the FCC has generally attempted to balance and accommodate the legitimate business interests of callers in addition to recognized consumer privacy interests.[3]

Continue reading “FCC Denies Petition by Mortgage Bankers Association to Exempt Certain Mortgage Servicing Calls from Prior Express Consent Requirement”

District Court Declines to Exercise Supplemental Jurisdiction and Dismisses State Law Claims

On November 7, 2016, a Southern District of Florida court sua sponte declined to exercise its supplemental authority and dismissed a plaintiff’s state law claims in a TCPA action. In Travis v. Residential Credit Solutions, Inc., the plaintiff alleges that defendant placed hundreds of calls to his cellular phone using an ATDS in an effort to collect a debt. From these allegations, the plaintiff filed an individual complaint consisting of three claims: two claims asserting violations of the Florida Consumer Collection Practices Act (“FCCPA”) and one claim asserting a violation of the TCPA. Continue reading “District Court Declines to Exercise Supplemental Jurisdiction and Dismisses State Law Claims”

FCC to Hold Webinar on How to Deal with Robocalls

On December 14th, from 1:00 p.m. to 2:00 p.m. EST, the FCC’s Consumer and Governmental Affairs Bureau will be hosting a free webinar for consumers entitled “How to Deal with Robocalls.” The purpose of the webinar is to provide information about consumers’ rights, the FCC’s role in addressing the issue of unwanted telemarketing robocalls, and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive. Individuals may participate via WebEx (audio and video) or by conference call. A detailed agenda is scheduled to be released in advance of the webinar. We will report back with observations and statements.

D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order

On November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. Our prior posts on the appeal can be found here, here, and here. The audio recording of the argument is available here. Continue reading “D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order”

TCPA Blog Nominated As A Best Legal Blog of 2016

For more than three years, our team has been providing you with breaking news and important information about litigation and regulation under the TCPA. We hope that you have enjoyed reading our blog as much as we have enjoyed writing it. If you have, we invite you to consider supporting our blog by voting for it in this year’s Best Legal Blog Contest.  To do so, please click here and cast your vote. Thank you for your support!

Second Circuit Moots Class Claims Based on Offer of Judgment

The Second Circuit last week confirmed that entries of judgment satisfying an individual plaintiff’s claims moot TCPA class actions.

In Bank v. Alliance Health Networks, LLC, No. 15-cv-4037 (2d Cir. Oct. 20, 2016), the Second Circuit affirmed the dismissal of the class claims after an entry of judgment, pursuant to the defendants’ offer of judgment, rendered the class claims moot. The Second Circuit acknowledged that the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that an unaccepted offer of judgment does not moot a plaintiff’s claims. “But where judgment has been entered and where the plaintiff’s claims have been satisfied, as they were here when [the plaintiff] negotiated the check, any individual claims are rendered moot.”  Continue reading “Second Circuit Moots Class Claims Based on Offer of Judgment”

Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal

The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the consolidated appeal of the FCC’s July 10, 2015 TCPA Declaratory Ruling and Order on Wednesday, October 19th. The panel was composed of Judges Sri Srinivasan, Cornelia T.L. Pillard and Harry T. Edwards. The argument was well attended and lasted nearly three hours – much longer than the forty minutes for which it had been scheduled. The panel’s questions primarily focused on the definition of an ATDS, the identity of the “called party” from whom consent must be obtained, the impracticality of the FCC’s one-call safe harbor, and the methods by which consumers may revoke consent. A small portion of the argument was devoted to healthcare-related messages. Continue reading “Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal”

Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order

On October 13, 2016, counsel for class action plaintiffs (“Plaintiff Petitioners”) in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, filed a notice of supplemental authority with the United States Court of Appeals for the D.C. Circuit, arguing that the court’s recent decision in PHH Corp. v. CFPB, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), supports their arguments that the FCC’s October 2014 Anda Order (the “Anda Order”) “constitutes an impermissible retroactive legislative or adjudicatory rule” and violates separation of powers principles. Continue reading “Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order”

Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability

The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).

In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS.  He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading “Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability”

DC Circuit Court of Appeals Hears Extended Oral Argument In The Consolidated Appeal

As we previously reported, the United States Court of Appeals for the D.C. Circuit held oral argument this morning in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. The issues before Judges Srinivasan, Pillard, and Edwards were: (1) the definition of an ATDS, particularly the Order’s treatment of the terms “capacity” and “using a random or sequential number generator;” (2) the identity of the “called party” from whom consent must be obtained and the impracticality of the Order’s one-call safe harbor provision; (3) the means by which consent may be revoked; and (4) whether healthcare-related calls should be afforded the same treatment they receive under HIPAA.

Continue reading “DC Circuit Court of Appeals Hears Extended Oral Argument In The Consolidated Appeal”