Parties Seek Twenty Minutes Of Oral Argument In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the petitioners in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order filed an unopposed motion seeking twenty minutes of oral argument for each side. 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.

In requesting twenty minutes of oral argument time, the petitioners note the importance and the complexity of the issues raised in their petitions for review. Namely, “the kinds of equipment that fall within the [TCPA’s] restrictions on calls to wireless numbers from ‘automatic telephone dialing systems,” “the scope of liability for those who call numbers that (unbeknownst to them) have been reassigned from one, consenting consumer to another, non-consenting one,” “the methods by which consumers may revoke consent[,]” and the types of “informational healthcare-related” calls that fall outside of the TCPA’s scope.  As such, the petitioners request that each side be allotted twenty minutes of oral argument time with petitioner Rite Aid arguing five minutes on the healthcare-related issues of the Order and the rest of the petitioners arguing fifteen minutes.

We will continue to monitor the pending appeal and report on any significant developments before and after oral argument on October 19th.

Class Actions After Spokeo

At last week’s annual meeting of the Business Law Section of the American Bar Association, TCPA Blog’s Michael Daly participated in a panel discussion that examined how the Supreme Court’s recent decision in Spokeo, Inc. v. Robins is affecting class action litigation under the TCPA, the FCRA, and other recurring “gotcha” statutes. The panel explored a number of interesting issues with which courts have been grappling in TCPA cases, for example whether a plaintiff has a “concrete” harm for purposes of Article III if she received a fax without an opt-out notice, received a solitary call or text, or received calls or texts on phones that she had purchased for the specific purpose of receiving errant calls and texts to recycled numbers—all of which are all too common in TCPA litigation. The panel also examined how the decision will affect not only jurisdiction but also certification, specifically whether courts should certify classes if any harm involved is inherently individualized. The panel was moderated by Katherine Armstrong, who worked at the FTC for more than thirty years on FCRA initiatives and other consumer protection issues.

Oral Argument Scheduled In The Consolidated Appeal From The FCC’s October 2014 Anda Order

After recently scheduling oral argument in the consolidated appeal from the July 2015 Declaratory Ruling and Order, the United States Court of Appeals for the D.C. Circuit has scheduled oral argument in the consolidated appeal from the Federal Communication Commission’s (“FCC”) October 2014 Final Order (the “Anda Order”) for Tuesday, November 8, 2016.  As we previously reported, in the Anda Order the FCC found that it had the statutory authority to  promulgate a rule requiring  that the opt-out notice Congress specified in the Junk Fax Prevention Act (“JFPA”) must be present on faxes for the sender to take advantage of the Established Business Relationship (“EBR”) exemption must also appear on solicited faxes. The FCC also decided that, because of reasonable confusion surrounding the rule, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without an opt-out notice. Following the release of the Anda Order, both class action plaintiffs (“Plaintiff Petitioners”) and class action defendants (“Defendant Petitioners”) filed cross-appeals, which were consolidated and centralized in the D.C. Circuit as Bais Yaakov of Spring Valley, et al. v. FCC, No. 14-1234. Continue reading “Oral Argument Scheduled In The Consolidated Appeal From The FCC’s October 2014 Anda Order”

FCC Issues Report and Order Implementing 2015 Bipartisan Budget Act Exemption for Calls Made to Collect on Federally-Owned or -Guaranteed Debt

On August 11, 2016, the FCC released a Report and Order implementing Section 301 of the Bipartisan Budget Act of 2015 (the “Budget Act”), which exempts autodialed and prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States” from the TCPA’s prior express consent requirement. The Budget Act provision also authorizes the FCC to adopt rules to “restrict or limit the number and duration” of any wireless calls made to collect debts owed to or guaranteed by the federal government. Continue reading “FCC Issues Report and Order Implementing 2015 Bipartisan Budget Act Exemption for Calls Made to Collect on Federally-Owned or -Guaranteed Debt”

Time For A Timeout In TCPA Litigation

In TCPA Blog’s latest Law360 column, Mike Daly, Meredith Slawe, and Dan Brewer discuss why courts should temporarily stay TCPA cases pending the regulatory appeal of the FCC’s July 10, 2015 Order, which is set for oral argument before the United States Court of Appeals for the D.C. Circuit on October 19, 2016. The article addresses the flaw in plaintiffs’ argument that they are prejudiced while awaiting a decision: Continue reading “Time For A Timeout In TCPA Litigation”

Seventh Circuit Holds That TCPA Does Not Shift Attorneys’ Fees or Create Common Funds, Reverses Order Entitling Individual Plaintiffs To More Than $500 Per Violation

In Holzman v. Turza, Nos. 15-2164 & 15-2256, 2016 U.S. App. LEXIS 12594 (7th Cir. July 8, 2016), the Seventh Circuit reversed an order that could have resulted in individual payments of $500 per violation plus attorneys’ fees, i.e., more than the $500 in statutory damages for which the statute provides.

After the plaintiff prevailed on the merits, the trial court directed the defendant to deposit $4.215 million into court, which represented the $500 in statutory damages for each of the 8,430 faxes at issue. It then ordered that one third of the $4.215 million be used to pay class counsel and that two-thirds of the $4.215 million be used to pay class members. Id. at *3. Class members would be sent a check in the amount of $333 per fax, i.e., two thirds of $500. If, however, a check was uncashed or undeliverable, class members who had cashed their checks would receive a second distribution of up to $167 (i.e., so that their total recovery could, in theory, reach $500 per fax).  Id. If any funds remained after that second distribution, then, and only then would they revert to the defendant. Id.  Continue reading “Seventh Circuit Holds That TCPA Does Not Shift Attorneys’ Fees or Create Common Funds, Reverses Order Entitling Individual Plaintiffs To More Than $500 Per Violation”

Mobile App Operator Not Liable Under TCPA

In an important decision applying the FCC’s July 2015 Declaratory Ruling, a district court recently dismissed TCPA claims against Life360, a mobile application operator. See Cour v. Life360, Inc., Case No. 16-cv-00805-TEH (N.D. Cal. July 28, 2016). The decision provides critical guidance as to when users of a mobile app – rather than the mobile app provider – will be deemed to initiate the text messages, for purposes of assessing TCPA compliance. Continue reading “Mobile App Operator Not Liable Under TCPA”

FCC and District Court Provide Additional Clarity to the TCPA’s Emergency Purpose Exception

Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.).  The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. Continue reading “FCC and District Court Provide Additional Clarity to the TCPA’s Emergency Purpose Exception”

First Amendment Protects Automated Calls Made for Political Campaigns in Arkansas

As we’ve previously discussed, while First Amendment challenges to the TCPA have largely been unsuccessful, First Amendment challenges to restrictions on calls or texts made in connection with political campaigns may fare differently. Further evidence of this distinction came last week, when a district court in the Eastern District of Arkansas declared Arkansas’s restriction on using automated or prerecorded  telephone calls to “‘solicit[] information, gather[] data, or for any other purpose in connection with a political campaign’” unconstitutional as “a content-based regulation that does not survive strict scrutiny.” Gresham v. Rutledge, No. 16cv241, 2016 U.S. Dist. LEXIS 97964, at *2-3 (E.D. Ark. July 27, 2016) (quoting Ark. Code Ann. § 5-63-204(a)(1)). Continue reading “First Amendment Protects Automated Calls Made for Political Campaigns in Arkansas”

Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request

For some time the FCC’s Chairman, Tom Wheeler, has been calling on wireless and wireline carriers alike to take more aggressive steps to assist consumers in preventing unwelcome or unsolicited calls and spam messages. The FCC’s July 10, 2015 Declaratory Ruling, for example, contained a discussion focused on resolving the question of whether carriers had a legal obligation to transmit all calls without blocking. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd 7961, ¶¶ 152-63 (July 10, 2015). The Declaratory Ruling affirmed that nothing in the Communications Act or FCC rules or orders prohibits carriers from offering or implementing call blocking technologies for those customers who choose to use them. Id. Continue reading “Robocall Blocking “Strike Force” Initiated at FCC Chairman’s Request”