Ten Comical Parallel Acronyms, or: Ten TCPAs That Will Not Be Covered by the TCPA Blog

Our digital searches for new decisions under “TCPA or T.C.P.A.” have yielded some interesting (and, truth be told, lots of uninteresting) decisions about what we all know to be the TCPA.  As it happens, though, they have also yielded decisions about a whole host of other “TCPAs,” for example the Trademark Cyberpiracy Prevention Act, the Tennessee Consumer Protection Act, the Texas Citizens’ Participation Act, and the New Jersey Toxic Catastrophe Prevention Act.

None of those TCPAs will be covered here, interesting though they may be.  Nor will the following ten associations, alliances, advocates, or archeologists that also go by the name of “TCPA.”  Unless, that is, they sue or are sued under the TCPA—which, at the rate things are going, is only a matter of time.

10. The Town and Country Planning Association
9. The Trusted Computing Platform Alliance n/k/a the Trusted Computing Group
8. The Texas Competitive Power Advocates
7. The Foundation for Theoretical and Computational Physics and Astrophysics
6. The Texas Crime Prevention Association
5. The Thai Crop Protection Association
4. The Turpanjian Center for Policy Analysis
3. The TI Calculator Programming Alliance
2. The Tennessee Council of Professional Archaeology
1. The Tantawangalo Catchment Protection Association

FCC Opportunities for TCPA Rule Revision or Interpretation

The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling.  Immediately upon the federal government’s reopening, two additional petitions were filed.  While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.

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Court Says Premature TCPA Class Certification Motion Raises “Serious Public Policy Concerns”

We previously discussed the growing trend of moving for TCPA class certification at the outset of litigation in order to prevent a defendant from trying to moot a named plaintiff’s claims by making a Rule 68 offer of judgment.

In Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.), the Middle District of Florida recently denied the plaintiff’s motion to certify a class of individuals who allegedly received “automated calls” to cell phones in violation of the TCPA.  Plaintiff conceded that the motion was filed “solely to prevent any individual ‘buy off’ of the putative class representative.”  The court did not take kindly to the preemptive motion.  Indeed, it stated that the motion was motivated by the self-interest of counsel, and raised “serious public policy concerns about whether class action litigation should be driven by the interests of counsel rather than the issues of the client.”  The Court ultimately denied the motion because the plaintiff had failed to perfect service of the complaint.  But in doing so, it cautioned plaintiff’s counsel not to file another motion for class certification until he has “adequate facts and legal authority” to do so.

It is clear that the court was less than pleased with the preemptive class certification motion. Whether that plays a role in the outcome of the case remains to be seen.

A copy of the decision is available here.

TCPA Class Certification Denied — Necessity of Individualized Consent Inquiries Doom Certification of TCPA Class Actions

Once again, a defendant has defeated a TCPA class certification motion on the ground that the liability inquiry would require individualized inquiries into class members’ consent to receive calls, precluding a finding of predominance.

In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, Case No. 12CV599 JLS (MDD), 2013 WL 5835414 (S.D. Cal. Oct. 29, 2013), plaintiffs sued a resort properties operator alleging that its third party marketer violated the TCPA by using an ATDS to make telemarketing calls to cell phones without obtaining prior express consent.  Id. at *1.  Plaintiffs sought to certify a sprawling class of all recipients of any of 37 million calls to 6 million different numbers over a four-year period, and sought statutory damages for this would-be class “that could total between $18 and $54 billion.”  Id. at *1.

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Buyer Beware: When the Financially Challenged Marketing Partner is a Co-Defendant in TCPA Litigation

A recently proposed class action settlement agreement illustrates the potential litigation perils when any established business relies on outsourced, undercapitalized marketing agents who lack either the assets or insurance to adequately defend TCPA class action litigation.  Indeed, the only proposed recovery for the class is an agreement to provide testimony and documentary evidence of the co-defendant’s actual knowledge of the conduct that violated the TCPA, and its alleged authorization of the subject unlawful text messaging.

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California State Court Holds That Equipment That Lacks Present Capacity to Use Random or Sequential Number Generator Is Not an ATDS

A few weeks ago we wrote about Hunt v. 21st Mortgage Corp., 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), in which the United States District Court for the Northern District of Alabama took a narrow view of what qualifies as an automatic telephone dialing system (“ATDS”) under the TCPA.  That definitional issue has been hotly contested because calls that do not use an ATDS do not need prior express consent.  (Our prior summary of the issues and the Hunt decision is available here.)

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Reminder: TCPA Claims Are Arbitrable

The District of Massachusetts recently found that TCPA claims arising from debt collection calls fall within the scope of an arbitration agreement that covered disputes relating to “violations of statute” or “the impositions or collection of principle.”  Cyganiewicz v. Sallie Mae, Inc., Nos. 13-40068, 13-40067, 2013 U.S. Dist. LEXIS 153554, 153556, at *7 (D. Mass. Oct. 24, 2013).

In Cyganiewicz, plaintiffs brought suit against Sallie Mae, claiming that its collections practices violated the TCPA.  Plaintiffs were the borrower and the co-signor on three promissory notes, all of which contained arbitration agreements that could have been (but were not) rejected by sending a signed rejection notice to Sallie Mae within sixty days of the disbursement of the loan.  Id. at *2.  Plaintiffs alleged that Sallie Mae made calls from automated dialing machines to collect the outstanding balance of their loans, including approximately 147 calls after plaintiffs requested that the calls stop.  Plaintiffs argued that their arbitration agreements were not enforceable and that, even if they were, their TCPA claims were not arbitrable.   The court found otherwise and granted Sallie Mae’s motion to dismiss for lack of subject matter jurisdiction.

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District Court Endorses FCC Liability Limitation for ‘Fax Broadcasters’

A federal district court judge in Maryland gave a clear endorsement of the FCC’s regulation limiting fax broadcasters’ liability under the TCPA.  Asher & Simons, P.A. v. J2 Global Canada, Inc., No. JKB-13-0981, 2013 U.S. DIST. LEXIS 148972 (D. Md. Oct. 16, 2013).  FCC regulations limit the liability of so-called fax broadcasters (those who transmit faxes for a fee on behalf of others) to those circumstances in which a broadcaster “demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.”  47 C.F.R. § 64.1200 (a)(4)(vii).  The Canadian affiliate of j2 Global asserted the FCC regulation as an affirmative defense, and the plaintiffs challenged this particular defense by a motion for partial summary judgment.  The plaintiffs argued that FCC regulatory authority under the TCPA is limited, and could not be read to include the power to limit liability for any transmission of an unsolicited fax.

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New TCPA Rules Take Effect on October 16, 2013

The Telephone Consumer Protection Act of 1991 (“TCPA”)[1] places certain restrictions on telemarketing calls, text messages, and faxes.  It has long been a favorite of the plaintiffs’ bar because it provides for statutory damages of $500 to $1500 per violation,[2] which in the aggregate can lead to substantial windfalls for plaintiffs.  TCPA violations (even innocent ones) can place companies at significant risk and TCPA litigation has skyrocketed as a result.[3]

Last year, the Federal Communications Commission (“FCC”) added fuel to the fire by amending its TCPA rules and further restricting telemarketing calls.[4]  The most significant of those amendments – which narrow and eliminate key statutory exemptions – will take effect tomorrow, on October 16, 2013.

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Federal Court Takes Narrow View of What Constitutes an ATDS

The TCPA prohibits the use of an automatic telephone dialing system (“ATDS”) to place calls to wireless phones without the called party’s prior express consent.  Because calls placed without the use of an ATDS are not subject to the TCPA’s prior express consent requirements, what constitutes an ATDS has been a hotly contested issue.  This issue can be expected to take on even greater importance under the new FCC rules that take effect on October 16, because the “prior express consent” requirement will now require written consent.  Telemarketers, it can be expected, may explore ways to abandon the use of equipment that would fall within the definition of ATDS and to modify or replace that equipment with something that would not be an ATDS.

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