On August 17, 2015, the Professional Association for Customer Engagement, Inc. (“PACE”) and Sirius XM Radio Inc. (“Sirius”) (collectively, the “Petitioners”) filed identical statements of issues (read the PACE statement and the Sirius XM statement) in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order. The Petitioners’ statements focus on the following issues: (1) the FCC’s interpretation of the terms “capacity” and “called party” under the TCPA, (2) the FCC’s one call safe harbor provision for calls made to reassigned numbers, (3) the FCC’s treatment of revocation, and (4) the FCC’s authority to require prior express written consent for telemarketing calls.
ACA International Files Statement of Issues in its Appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order
On August 12, 2015, ACA International (“ACA”), one of three petitioners in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, filed a statement of issues (D.C. Cir. filed Aug. 12, 2015) in its appeal of the FCC’s Order. ACA raises the following issues: (1) the FCC’s redefinition of an ATDS, (2) prior express consent, and (3) the FCC’s deviation from the statute’s intent.
A Cell Phone Area Code May Not Be Enough to Establish Personal Jurisdiction
In a recent Southern District of Texas decision, Cantu v. Platinum Mktg. Group, Case No. 1:14-CV-71, 2015 U.S. Dist. LEXIS 90824 (S.D. Tex. Jul. 13, 2015), plaintiff Hector Cantu brought suit against defendant Platinum Marketing Group LLC d/b/a/ DiabetesHelpNow.com, LLC (“Platinum”) for calls made to his cell phone in violation of the TCPA. In considering Cantu’s motion for entry of default judgment, the court concluded that it lacked personal jurisdiction over the defendant.
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7th Circuit Reverses Course on Article III Standing Where Plaintiff Declines a Rule 68 Offer of Complete Relief
In an August 6, 2015 opinion, the Seventh Circuit ruled that a defendant’s offer of complete relief in a TCPA lawsuit did not render an individual plaintiff’s claims moot. Chapman v. First Index, Inc., Nos. 14-2773, 14-2775, 2015 WL 4652878 (7th Cir. Aug. 6, 2015). In Chapman, the Seventh Circuit expressly “overrule[d]” its prior decisions in Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), Thorogood v. Sears, Roebuck & Co., 595 F.3d 750 (7th Cir. 2010), and Rand v. Monsanto Co., 926 F.2d 596 (7th Cir. 1990), “to the extent they [held] that a defendant’s offer of full compensation moots the litigation or otherwise ends the Article III case or controversy.”
Council of American Survey Research Organizations and the Marketing Research Association File Motion to Intervene in Support of Consolidated Appeal of FCC’s July 10, 2015 Declaratory Ruling
As we previously noted, on August 7, 2015, MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, or in the alternative, leave to participate as amici curiae in support of petitioner, ACA International. On August 12, 2015, the Council of American Survey Research Organizations (“CASRO”) and the Marketing Research Association (“MRA”) (collectively, “Intervenors”) filed their own joint motion for leave to intervene in the consolidated appeal of the FCC’s Order. See Motion to Intervene (D.C. Cir. filed Aug. 12, 2015).
Debt Collection Agencies File Motion to Intervene in Support of Consolidated Appeal of FCC’s July 10, 2015 Declaratory Ruling
As we previously noted, three petitions for review were filed in the immediate aftermath of the FCC’s Declaratory Ruling and Order, which were then consolidated and randomly assigned to the United States Court of Appeals for the D.C. Circuit. On August 7, 2015, MRS BPO LLC, Cavalry Portfolio Services, LLC, Diversified Consultants, Inc., and Mercantile Adjustment Bureau, LLC filed a joint motion for leave to intervene in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order, or in the alternative, leave to participate as amici curiae in support of petitioner, ACA International.
Plaintiff’s Counsel Concedes Applicability of Arbitration Provision to TCPA Suit
The Eastern District of North Carolina recently granted a motion compelling arbitration in a TCPA case involving debt-collection calls allegedly made to plaintiff’s cellular telephone. See Rice v. Credit One Fin., No. 5:15-130, 2015 WL 4528933 (E.D.N.C. July 27, 2015). As previously covered here, here, and here, district courts around the country have demonstrated a willingness to order arbitration when TCPA claims fall within the scope of an arbitration agreement.
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Appeals From Declaratory Ruling Consolidated And Assigned To D.C. Circuit
As we previously noted, three petitions for review were filed in the immediate aftermath of the FCC’s Declaratory Ruling. On Friday, July 24, 2015, the Judicial Panel on Multidistrict Litigation issued a Consolidation Order that consolidated and randomly assigned those three appeals to the United States Court of Appeals for the D.C. Circuit.
Additional Challenges to the FCC’s July 10, 2015 Declaratory Ruling
As anticipated, additional challenges to the FCC’s July 10, 2015 Declaratory Ruling and Order are being filed across the country (we reported earlier that ACA International first filed a petition for review on July 10, 2014). PACE (the Professional Association for Customer Engagement, Inc.) filed its petition for review with the United States Court of Appeals for the Seventh Circuit on July 14, 2015. See Prof’l Ass’n for Customer Engagement, Inc. v. FCC, No. 15-2489 (7th Cir. filed July 14, 2015). On the same day, Sirius (Sirius XM Radio, Inc.) filed a virtually identical petition for review with the United States Court of Appeals for the District of Columbia Circuit. See Sirius XM Radio, Inc. v. FCC, No. 15-1218 (D.C. Cir. filed July 14, 2015). PACE and Sirius challenge the FCC’s “expan[sion] [of] the TCPA’s reach by sweeping in calls to wireless numbers made from equipment that lacks the present capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and ‘to dial such nmbers.’”
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First Challenge to July 10, 2015 Declaratory Ruling Already Filed
While the July 10, 2015 Declaratory Ruling and Order (our summary of which can be found here) was released after the close of business on Friday, one petitioner has already filed a petition for review of the Declaratory Ruling: ACA International (the Association of Credit and Collection Professionals) (“ACA”). ACA filed its petition for review with the United States Court of Appeals for the District of Columbia Circuit on July 10, and filed an amended petition on July 13. See ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 10, 2015). ACA challenges the FCC’s “treatment of ‘capacity’ within the definition of an automatic telephone dialing system,” the FCC’s “treatment of predictive dialers,” and the FCC’s interpretation of the term “‘prior express consent’ (including its treatment of reassigned numbers.” Amended Petition for Review at 2-3, ACA Int’l v. FCC, No. 15-1211 (D.C. Cir. filed July 13, 2015), Doc. No. 1562251. ACA asks the DC Circuit to hold unlawful the FCC’s treatment of “capacity” and compel the FCC to “treat ‘capacity’ in a way that comports with a caller’s right of due process and free speech;” hold unlawful the FCC’s treatment of “predictive dialers” and compel the FCC to “treat them in a way that does not expand the statutory definition . . . beyond the definition that Congress enacted;” and hold unlawful the FCC’s treatment of “prior express consent, including the Commission’s treatment of reassigned numbers,” and compel the Commission to establish either a “viable safe harbor for autodialed ‘wrong number’ non-telemarketing calls to reassigned wireless numbers” or “define ‘called party’ as a call’s intended recipient.” Id. at 4-5.