Last week, Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina handed down a decision of first impression for that court: the FCC’s do-not-call rule, 47 C.F.R. § 64.1200(d), creates a private right of action for telephone subscribers who receive calls in violation of that rule’s “minimum standards.” The decision widens the growing split among federal courts as to which provision of the TCPA gives life to the DNC rule.
On its motion to dismiss, the defendant argued that the plaintiff could not maintain an action for alleged violations of § 64.1200(d) because the FCC promulgated that rule under 47 U.S.C. § 227(d), which does not create a private right of action for violations of implementing regulations. Fischman v. MediaStratX, LLC, No. 2:20-CV-83-D, 2021 WL 3559639, at *4 (E.D.N.C. Aug. 10, 2021). In opposition, the plaintiff argued that the rule was actually passed pursuant to 47 U.S.C. § 227(c), which does create a private right of action for such violations. Id.
Before resolving the issue, Judge Dever noted that the FCC has yet to resolve this question and that courts have diverged on the answer. Some courts, including the Sixth and Eleventh Circuits, have held that the DNC rule was enacted under § 227(c) because that subsection calls for the FCC to create rules designed to implement “methods and procedures” for protecting subscriber privacy rights, such as internal do-not-call lists. Id. (citing, among other cases, Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1265 (11th Cir. 2019); Charvat v. NMP, LLC, 656 F.3d 440, 443-44 (6th Cir. 2011)). Other courts, by contrast, have concluded that the rule derives from § 227(d) because its contents align with that subsection’s title—“Technical and procedural safeguards.” Id. at *5 (citing, among other cases, Worsham v. Discount Power, Inc., No. RDB-20-0008, 2021 WL 50922, at *4 (D. Md. Jan. 6, 2021); Braver v. Northstar Alarm Servs., LLC, No. CIV-170383, 2019 WL 3208651, at *15 (W.D. Okla. July 16, 2019)). As additional support for this view, one court has cited a 1992 FCC report wherein the Commission states that the DNC rule implements § 227(d)’s directive that callers provide certain call-tracking information. Id. (citing Burdge v. Ass’n Health Care Mgmt., Inc., No. 1:10-CV-00100, 2011 WL 379159, at *4 (S.D. Ohio Feb. 2, 2011)).
The first view is correct, Judge Dever held, because “[t]he plain text of the procedures described in section 64.1200(d) corresponds with 47 U.S.C. § 227(c)’s requirements that the FCC promulgate rules to protect residential telephone subscribers’ privacy rights.” Id. According to Judge Dever, the fact that § 227(d)’s title calls for “procedural standards” does not limit the plain meaning of § 227(c)’s text. Id. at *6. And as for the 1992 FCC report, he found that the fact that certain directives of § 227(d) were implemented in the DNC rule does not mean that directives of § 227(c) weren’t also implemented in the rule. Id.
Because Judge Dever found that § 64.1200(d) was promulgated pursuant to 47 U.S.C. § 227(c), he allowed the plaintiff to maintain the suit. He then proceeded to reject the defendant’s other arguments for dismissal—i.e., that the court lacked subject-matter jurisdiction and that the plaintiff had failed to state a claim. Id. at *3, *6.
The FCC or U.S. Supreme Court may eventually resolve whether plaintiffs can bring private actions for alleged violations § 64.1200(d). In the meantime, defendants facing such claims should first determine whether their jurisdiction has addressed this issue. If the question is one of first impression, the defendant should express to the court that the regulatory history of § 64.1200(d) and the statutory framework of the TCPA strongly suggest that the DNC rule was promulgated under 47 U.S.C. § 227(d), which does not create private causes of action for alleged non-compliance.