Following up on our March 9 reminder, and just in time for Super Tuesday II, the Federal Communications Commission’s Enforcement Bureau issued an Enforcement Advisory on March 14 titled, “Biennial Reminder for Political Campaigns about Robocall and Text Abuse.” The advisory (similar to past advisories) is a reminder to “political campaigns and calling services that there are clear limits on the use of autodialed calls or texts (known as ‘robocalls’) and prerecorded voice calls.” The advisory summarizes the TCPA’s regulations on (1) calls to cell phones, (2) calls to landlines, (3) identification requirements for prerecorded voice messages, and (4) “line seizure” restrictions. The advisory also includes an “At a Glance” summary of regulations as applied to Political Calls and a series of Frequently Asked Questions with contact information for the Enforcement Bureau for those who have unanswered questions or lingering concerns. Continue reading “Tippecanoe and the TCPA, Too, Two”
Federal Court Schools Plaintiff on Limits of TCPA
The Middle District of Florida recently entered summary judgment in favor of a school board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016). The decision creates a potentially insurmountable obstacle for plaintiffs who have taken to setting their sights on school districts and other well intentioned government actors.
In Lambert, the defendant allegedly made 537 calls to the plaintiff’s cellphone shortly after he received a reassigned number. The calls used prerecorded voice prompts and messages that were meant to communicate with prospective substitute teachers, to whom the school district had issued five-digit identification codes. The plaintiff alleged that he was not the intended recipient of the calls and that he neither worked as a substitute teacher nor received an identification code. Continue reading “Federal Court Schools Plaintiff on Limits of TCPA”
Tippecanoe and the TCPA Too
With election season under way, it bears repeating that candidates for office are not immune from the restrictions imposed by the TCPA. As the FCC’s Enforcement Bureau explained in an advisory that we discussed previously here, while “[p]olitical prerecorded voice messages or autodialed calls—whether live or prerecorded—to most landline telephones are not prohibited, so long as they adhere to the identification requirements” mandated for all prerecorded messages, the “broad prohibition” on calls to cell phones and other specific types of phone numbers (e.g., health care/emergency lines) “covers prerecorded voice and autodialed political calls, including those sent by nonprofit/political organizations.” Candidates (or their supporters) who are not aware of the TCPA (or confused about the difference between the restrictions on informational calls to cellular phones versus such calls to residential landlines and not aware of the difficulties in managing recycled number issues) risk finding their campaign embroiled in litigation, as evidenced by a new TCPA filing last week. Continue reading “Tippecanoe and the TCPA Too”
TCPA and VoIP: Revisiting the Fourth Circuit’s Ruling In Lynn v. Monarch Recovery Management
In TCPA Blog’s latest Law360 column, contributors Eduardo Guzmán, Michael Daly and Anthony Glosson discuss the Fourth Circuit’s opinion in Lynn v. Monarch Recovery Management Inc. They explain that the opinion has analytical gaps, leaves unanswered questions, and does not mean that calls to residential VoIP-based telephony services should necessarily be treated differently than calls to other residential:
In short, unpublished opinion in Lynn v. Monarch Recovery Management Inc., the United States Court of Appeals for the Fourth Circuit stated that the “call-charged provision” of the TCPA applied to debt collection calls made to a residential VoIP-based line. The plaintiffs’ bar responded by suggesting that the TCPA applies differently to so-called “VoIP calls,” and telemarketing vendors responded by marketing services that scrub all numbers assigned to VoIP carriers — a move that, given VoIP’s increasing popularity, could end up eliminating a substantial percentage of residential numbers. However, a more objective analysis of the opinion and the issues suggests that these reactions may be overstated, if not altogether misplaced.
They go on to explain that predictions about the decision’s consequences may be wrong because it: (1) is unpublished and nonprecedential; (2) involved a highly unusual fact pattern; and (3) has serious gaps in its interpretation of the scope and application of the “call-charged provision.
Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete
On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.
The Joint Petitioners’ Final Brief
The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading “Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete”
Sixth Circuit Affirms Dismissal Of TCPA Claims Against Healthcare Providers’ Debt Collector
The Sixth Circuit recently affirmed the entry of summary judgment against plaintiffs who had not given their phone numbers to the debt collector that had called them or to the creditor to which they owed money. See Baisden v. Credit Adjustments, Inc., No. 15-3411, 2016 U.S. App. LEXIS 2465 (6th Cir. Feb. 12, 2016). In doing so, it agreed with the FCC and the Eleventh Circuit that “prior express consent” can be “obtained and conveyed via intermediaries,” in this case the hospital to which the plaintiffs had voluntarily given their numbers.
The plaintiffs were former patients at a hospital (Mount Carmel Hospital) who owed debts that were transferred from an affiliated anesthesiology practice (Consultant Anesthesiologists) to a debt collector (Credit Adjustments, Inc.). Both of the plaintiffs had signed admission forms that permitted the hospital to release their “health information” to third parties for purposes of “billing and payment” or “billing and collecting monies due,” among other things. Id. at *2-6. After the plaintiffs received calls from the debt collector regarding their debts, they filed a putative class action against the debt collector, the anesthesiology practice, and the hospital. Continue reading “Sixth Circuit Affirms Dismissal Of TCPA Claims Against Healthcare Providers’ Debt Collector”
FCC Seeks Public Comment on Lifetime Petition For Declaratory Ruling or Retroactive Waiver
The FCC’s Consumer and Governmental Affairs Bureau has issued a public notice seeking comment on a December 11, 2015 petition by Lifetime Entertainment Services, LLC (“Lifetime”). The petition asked the FCC to clarify that the TCPA’s limitations on prerecorded calls do not apply to calls by cable operators and networks that merely inform subscribers about content that they are already entitled to watch. In the alternative, Lifetime sought a grant of retroactive waiver for a call that it had allegedly placed to inform subscribers that a reality television program had moved to Lifetime, and was accordingly available under the subscriber’s current plan. Lifetime argued that, because it was not urging the subscriber to make a new purchase, and indeed, provided no information on how to make any purchase, the call should be viewed as informational, not telemarketing. In support of this conclusion, Lifetime cited Sandusky Wellness Center, LLC v. Medco Health Solutions, which deemed informational several faxes that were “not sent with hopes to make a profit.” 788 F.3d 218, 221 (6th Cir. 2015). The FCC has set the deadlines for comments and reply comments on this petition at March 7, 2016 and March 21, 2016, respectively.
Ninth Circuit Confirms That Providing A Business With Phone Number Constitutes Express Consent To Be Called Under The TCPA
In a recent decision, the Ninth Circuit held that the named plaintiff in a putative TCPA class action expressly consented to receive a text message when she provided an airline with her phone number, even though she claimed she only provided her number because she thought it was required to purchase airline tickets and had no intention of consenting to be contacted. Baird v. Sabre, Inc., No. 14-55293, 2016 WL 424778, at *1 (9th Cir. Feb. 3, 2016).
When Shaya Baird booked flights online, she was prompted to provide contact information and was informed that “‘[a]t least one phone number is required.’” Baird v. Sabre, Inc., 995 F. Supp. 2d 1100, 1101 (C.D. Cal. 2014). Three weeks later, Sabre, which was contracted by Hawaiian Airlines to provide traveler notification services, sent Baird a text message asking if she wanted to receive flight notifications. Baird did not respond and Sabre sent no other messages. Baird subsequently filed a putative class action. Continue reading “Ninth Circuit Confirms That Providing A Business With Phone Number Constitutes Express Consent To Be Called Under The TCPA”
Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order
On February 16th, the joint Petitioners, supporting Intervenors, and Rite Aid Hdqrtrs. Corp. (“Rite Aid”) each filed a reply brief in support of the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. Each brief addresses the deficiencies of the FCC’s response filed on January 15th, which was first reported here. The main arguments are summarized below. Continue reading “Joint Petitioners and Supporting Intervenors File Reply Briefs in Consolidated Appeal of FCC’s TCPA Order”
Briefing continues in cross appeals of Anda Order
In its October 2014 Final Order (the “Anda Order”), the Federal Communications Commission found that it had the statutory authority to regulate solicited faxes by promulgating a rule that requires an opt-out notice on all such faxes, but also found that because of reasonable confusion surrounding the regulation, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without the opt-out notice. Continue reading “Briefing continues in cross appeals of Anda Order”