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”
The Big Chill: How The FCC’s Reading Of The TCPA Violates The First Amendment And Demands The Impossible
As the defense bar’s preeminent public resource on TCPA litigation and regulation, TCPA Blog has been invited to contribute a regular column to Law360. In the first such column, Bradley Andreozzi, Michael Daly, and Justin Kay discuss how the FCC’s interpretations of the TCPA violate the First Amendment rights. They write:
For an agency charged with regulating communications, the Federal Communications Commission has shown itself to be remarkably indifferent to First Amendment rights. In its recent brief in the consolidated appeal from its July 2015 omnibus ruling on the Telephone Consumer Protection Act, the FCC blandly assured the D.C. Circuit that “[e]very court” has held that the TCPA’s restrictions “easily pass muster under the First Amendment.” FCC Brief at 73-74. But it all but ignored that, rather than “directly challenge the TCPA’s constitutionality,” the petitioners in that appeal challenge the FCC’s “interpretations of the statute.” Id. at 72-73. On that issue, the D.C. Circuit will be writing on a clean slate, and the First Amendment challenges are serious.
They then highlight three serious First Amendment concerns, specifically that the FCC’s: (1) healthcare exemption restricts necessary speech; (2) recycled numbers ruling demands the impossible; and (3) ATDS interpretation is unconstitutionally vague.
Bradley Andreozzi and Justin Kay Discuss TCPA in Modern Healthcare
TCPA Blog contributors Bradley Andreozzi and Justin Kay were recently featured in a Modern Healthcare article about a class action targeting Prospect Medical Group’s Southern California Hospital at Culver City. The suit alleges that the hospital violated the TCPA when its patient department called the plaintiff’s cell phone without the requisite consent in an effort to collect on a debt for services rendered at the facility. The article examined how the hospital became one of the first providers to be sued following the Federal Communications Commission’s July 2015 Omnibus ruling that narrowed the FCC’s reading of the scope of the required prior express consent for automated calls to patients. Continue reading “Bradley Andreozzi and Justin Kay Discuss TCPA in Modern Healthcare”
Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling
On January 22, 2016, two amicus briefs were filed in support of the FCC’s July 10, 2015 Omnibus Ruling in the consolidated appeal before the District of Columbia Circuit. One brief was filed by the National Consumer Law Center, National Association of Consumer Advocates, Consumers Union, AARP, Consumer Federation of America, and MFY Legal Services (collectively the “NCLC Amici”). The other was filed by the Electronic Privacy Information Center (“EPIC”), Constitutional Alliance, Consumer Watchdog, Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times (collectively the “EPIC Amici”). The main arguments of each brief are summarized below. Continue reading “Two Amicus Briefs Filed in Support of the FCC’s July 10th Omnibus Ruling”
Supreme Court Rules that Unaccepted Offer Does Not Moot a Claim But Leaves Door Open to Mooting Through Actual Payment
On January 20, 2016, the Supreme Court issued a long-awaited ruling in Campbell-Ewald Co. v. Gomez. Although their reasoning differed, six of the Justices held that an unaccepted offer of complete relief does not in and of itself deprive a court of Article III jurisdiction by mooting a plaintiff’s claim. Continue reading “Supreme Court Rules that Unaccepted Offer Does Not Moot a Claim But Leaves Door Open to Mooting Through Actual Payment”
FCC Releases Order Denying Club Texting’s 2009 Petition on Text Broadcaster Liability Standards
On January 11, 2016, the FCC’s Consumer and Governmental Affairs Bureau (“Bureau”) acted on a petition filed in 2009, and denied Club Texting, Inc.’s (“Club Texting”) petition for declaratory ruling, which asked the FCC to clarify that text broadcasters are subject to the same TCPA liability standard as that applied to fax broadcasters. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petition of Club Texting, Inc. for Declaratory Ruling, Order, CG Docket 02-278 (Jan. 11, 2016) (“Jan. 11 Order”); see also Club Texting, Inc. Petition for Declaratory Ruling that Text Broadcasters Are Not “Senders of Text Messages Under § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278 (Apr. 25, 2009) (“Club Texting Petition”).
FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling
On Friday, January 15, 2016, the Federal Communications Commission filed its response to the arguments of the joint Petitioners in the consolidated appeal from its July 10, 2015 Omnibus Ruling. The Commission’s brief addresses the scope of its statutory authority, the definition of an “automatic telephone dialing system” (“ATDS”), the meaning of “called party” and the potential liability for calls to recycled numbers, the ability to revoke consent, healthcare-related calls and the emergency purpose exception, and First Amendment challenges to the Commission’s interpretations of the statute. Its main arguments are summarized below.
Continue reading “FCC Responds In Consolidated Appeal From Its July 2015 Omnibus Ruling”