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”

Oral Argument In The Consolidated Appeal To Be Heard This Upcoming Wednesday

As we previously reported, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. Each side has been allotted twenty minutes of oral argument time, with petitioner Rite Aid arguing for five minutes on the healthcare-related issues of the Order, and the rest of the petitioners arguing fifteen minutes. Paul Werner from Sheppard, Mullin, Richter & Hampton LLP is scheduled to argue on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day is scheduled to argue on behalf of the remaining joint petitioners, and Scott Noveck is scheduled to argue on behalf of the FCC. The argument will be heard before Judges Srinivasan, Pillard, and Edwards.

For those planning on attending, doors open around 9:10 a.m. and entry into the courtroom is on a first-come, first-served basis. Instructions on attendance can be found here. We plan to be in attendance and report back after the oral argument.

Reconsidering The Traceability Element of Constitutional Standing

In TCPA Blog’s latest column for Law360, Michael Daly, Justin Kay and Victoria Andrews addressed the issue of an alleged injury’s traceability to an alleged TCPA violation, which was recently highlighted in Romero v. Dep’t Stores Nat’l Bank and Ewing v. SQM US Inc. The United States District Court of the Southern District of California dismissed both cases based on a lack of constitutional standing because the alleged injuries could not be specifically traced back to the use of an Automatic Telephone Dialing System (“ATDS”). The decisions explained that, if the alleged injury would have been the same had the calls been dialed manually, then it could not be traced to use of an ATDS:

The court reasoned that “Mr. Ewing would have been no better off had Defendants dialed his number manually” since “[h]e would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion,” and cited McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) for the proposition that “‘[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.’” Id. at 5:4-12. Because the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA,” he lacked “standing to make a claim for the TCPA violation here.” Id. at 4:14-16.

The column examines the Romero and Ewing decisions and explores whether other courts will accept this defense in future TCPA cases.

Read “Reconsidering ‘Traceability’ Element of TCPA Standing.”

The New York Police Department’s Use of Wireless Emergency Alert System to Seek Help in Locating Bombing Suspect: A New Use for these Alerts

Following an explosion in September in the Chelsea neighborhood of New York City and discovery of other unexploded homemade bomb devices, the New York Police Department identified a suspect, Ahmad Khan Rahami, who was sought in connection with the bombings and attempted bombings in Manhattan and New Jersey. For the first time ever in this circumstance, the NYPD used a communications tool initially known as the “Commercial Mobile Alert System” (CMAS) and later renamed to be “Wireless Emergency Alerts” or WEA to function as an electronic wanted poster. This was in contrast to more familiar uses of this emergency communications capability, such as the localized transmission of severe weather advisories or Amber Alerts. Under FCC rules, these alerts are originated by authorized federal, state and local governments, and they currently are used to geographically target 90-character messages that fall into three distinct categories: Presidential, Imminent Threat, and Amber Alerts. Continue reading “The New York Police Department’s Use of Wireless Emergency Alert System to Seek Help in Locating Bombing Suspect: A New Use for these Alerts”

House Subcommittee Holds Hearing on Modernizing the TCPA

U.S. Rep. Greg Walden (R-OR), Chairman of the House Energy and Commerce Subcommittee on Communications and Technology, convened a hearing yesterday titled “Modernizing the Telephone Consumer Protection Act.” Chairman Walden opened the hearing with the following observations:

We all share the goal of preventing harmful phone calls, but it is increasingly clear that the law is outdated and in many cases, counterproductive. The attempts to strengthen the TCPA rules have actually resulted in a decline in legitimate, informational calls that consumers want and need.

The four witnesses at the one and a half hour hearing were Michelle Turano from WellCare Health Plans, Inc., Shaun W. Mock from Snapping Shoals Electric Membership Corporation, Spencer W. Waller from Loyola University Chicago, and Richard D. Shockey from Shockey Consulting. Continue reading “House Subcommittee Holds Hearing on Modernizing the TCPA”

House Subcommittee to Hold Hearing on Modernizing the TCPA

Today at 11:00 a.m., the Subcommittee on Communications and Technology will be holding a hearing entitled “Modernizing the Telephone Consumer Protection Act.”  The purpose of the hearing is for the Subcommittee to “consider the challenges faced by consumers and companies in a world where technology and consumer behavior may have outpaced the language of the Telephone Consumer Protection Act of 1991.” Continue reading “House Subcommittee to Hold Hearing on Modernizing the TCPA”

3 Factors to Weigh in Deciding To Fight Or Fold TCPA Suits

TCPA Blog’s Michael Daly and Meredith Slawe were recently quoted in the Law360 article, “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.” They explained that “[t]he best approach to defending TCPA cases is to master the facts of each case as early as possible and map out multiple paths to victory. Oftentimes, the smallest details can mean the difference between whether or not a call qualifies as ‘telemarketing’ or a consumer provided ‘consent’ or equipment qualifies as an ‘automatic telephone dialing system.’” The remainder of the article examines other factors from both plaintiffs’ and defendants’ perspectives.

Read “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.”

Court Finds That Equipment That Initiates Calls With Electronic Point and Click System Is Not An ATDS

In Pozo v. Stellar Recovery Collection Agency, Inc., No. 15-0929 (M.D. Fla. Sept. 2, 2016), the Middle District of Florida recently entered summary judgment against the plaintiff because it determined that an ATDS had not been used to call her.

The defendant in Pozo used a web-based dialing program called Human Call Initiator (“HCI”) to initiate the calls. HCI uses a “point-and-click” process that allows calls to be initiated by human “clicker agents.” Specifically, the program will not initiate a call until a clicker agent manually confirms in a dialogue box that the call should be made to that particular number. If a call is answered, the clicker agent then refers the call to a “closer agent” who speaks with the debtor. The program also allows clicker agents to view the availability of closer agents and will not initiate a call unless a closer agent is available. Continue reading “Court Finds That Equipment That Initiates Calls With Electronic Point and Click System Is Not An ATDS”

Can 1 Call Or Text Cause Injury Under TCPA?

In TCPA Blog’s latest Law360 column, Mike Daly, Justin Kay, and Victoria Andrews examine the differences in courts’ decisions regarding whether the receipt of a single call or text can be considered concrete harm for the purposes of constitutional standing in TCPA actions. The article first discusses state law claims that are routinely dismissed for lack of sufficient injury because the plaintiff alleged receipt of only one fax or text.  It then reviews recent TCPA claims that have been dismissed based upon similar reasoning, and compares them against those that have found that any alleged violation of the statute establishes sufficient injury to confer constitutional standing.  In doing so, the article addresses why the second line of cases employs faulty reasoning and fails to adhere to Congress’ intent and goals in enacting the TCPA: Continue reading “Can 1 Call Or Text Cause Injury Under TCPA?”