Opt-out Notices Archives

Topic: Opt-out Notices

FCC Acts on Pending Reconsideration Petitions of its 2020 TCPA Exemptions Order

The Telephone Consumer Protection Act of 1991 (TCPA) restricts many types of calls to residential and wireless telephone numbers if they are made without the prior express consent of the called party or a statutory exemption applies, but the statute authorizes the FCC to exempt certain calls from these restrictions. In 2020, the FCC in its TCPA Exemptions Order adopted measures to implement the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The TRACED Act required that the FCC ensure that any exemption to TCPA prior express consent that the FCC grants under section 227(b)(2)(B) or (C) of the Communications Act, allowing callers to make artificial voice, prerecorded voice, or autodialed calls without prior consent, include certain conditions. Specifically section 8(a) of the TRACED Act requires that any exemption contain requirements with respect to: “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.” The FCC in 2020 determined it would limit the number of exempted calls that can be made to residential phone lines; require that callers making exempt calls allow consumers to opt out of receiving future exempt calls; and codify existing FCC exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers.

Specifically, the FCC limited the number of exempted calls that can be made to a residential line to three artificial or prerecorded voice calls within any consecutive 30-day period for three types of exemptions (for non-commercial calls, commercial calls that do not constitute telemarketing, and calls by tax-exempt nonprofit organizations). For exempted HIPAA-related calls, the FCC amended its rules to limit the number of calls that can be made to a residential line to one artificial or prerecorded voice call per day, up to a maximum of three artificial or prerecorded voice calls per week. This healthcare call limitation is the same as that already imposed on healthcare calls to wireless numbers.

Continue reading “FCC Acts on Pending Reconsideration Petitions of its 2020 TCPA Exemptions Order”

Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability

We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation. Continue reading “Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability”

To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision

Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response. Continue reading “To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision”

Supreme Court Denies Petition Seeking Review of D.C. Circuit Fax Decision Holding that FCC Exceeded Its Authority

The Supreme Court today denied the petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC, thus leaving in place the D.C. Circuit’s ruling that “although the [Telephone Consumer Protection Act] requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” 852 F.3d 1078, 1082 (D.C. Cir. 2017). Our summary of the briefing on the petition is available here.

As we’ve discussed previously, the D.C. Circuit’s ruling (binding nationwide pursuant to the Hobbs Act) makes it much tougher for plaintiffs in TCPA fax suits to certify a class. The plaintiffs’ bar has typically sought to certify classes based on violations of the opt-out notice requirement for solicited faxes, because a class defined in such a way side-stepped the inherently individualized issue of whether the fax was solicited or not. With the opt-out notice requirement for solicited faxes eliminated, plaintiffs’ attorneys have a much tougher challenge. Indeed, in Alpha Tech Pet, Inc. v. Lagasse, LLC, No. 16 C 513, 2017 U.S. Dist. LEXIS 182499 (N.D. Ill. Nov. 3, 2017), a district court relying on the D.C. Circuit’s decision found that individualized issues of consent precluded certification of a class of fax recipients where certification could not be premised on whether the faxes included an opt-out notice. The plaintiff in Alpha Tech has appealed that decision, arguing (among other things) that the D.C. Circuit’s decision is not binding in the Seventh Circuit. Given the significance of this issue for the plaintiff’s bar, we can expect to continue to see collateral challenges like this to the repeal of the FCC’s solicited fax rule notwithstanding that the D.C. Circuit’s decision in Bais Yaakov is now final.

Briefing Concludes on Cert Petition Seeking Supreme Court Review of D.C. Circuit Fax Decision

On January 30, 2018, briefing closed on the petition for certiorari filed in the Supreme Court by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC. The class action plaintiffs are seeking review of the D.C. Circuit’s March 2017 decision (discussed at length here, here, here, and here) holding that the FCC exceeded its statutory authority when it promulgated regulations in 2006 requiring that a fax advertisement sent with the prior express consent of the recipient include an opt-out notice because “although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017). Continue reading “Briefing Concludes on Cert Petition Seeking Supreme Court Review of D.C. Circuit Fax Decision”

D.C. Circuit Denies Petition for Rehearing En Banc in Appeal of Solicited Fax Rule

As we predicted, the D.C. Circuit today denied the plaintiff’s petition for a rehearing en banc of the panel decision striking down the FCC’s regulations requiring opt-out notices on solicited faxes. The per curiam order notes only that “[u]pon consideration of the petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.” This result is hardly surprising given (i) the FCC Chairman’s current position that the panel decision overturning the FCC was correct (an anomaly that is the result of turnover at the Commission following the election results in November 2016) and (ii) the infrequency with which petitions for rehearing en banc are granted. We expect that the plaintiffs’ bar will continue its appeal efforts via a petition for writ of certiorari to the United States Supreme Court, but also expect that effort to meet the same fate as the petition for rehearing.

Central District of California Dismisses TCPA Claims Due to a Lack of Traceability

One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading “Central District of California Dismisses TCPA Claims Due to a Lack of Traceability”

There’s a Ketch: Court Reverses Entry of Summary Judgment in Favor of Plaintiffs with Muddled Timeline

A recent appellate opinion out of Oklahoma state court provides an important reminder that putative classes should not include people who did not receive the communication at issue. See Ketch v. Royal Windows, 113986 (Ct. Civ. App. Okla., Nov. 08, 2016).

In Ketch, the plaintiff filed suit after receiving an allegedly unsolicited fax advertisement from the defendant, from which it had previously requested a catalog. The defendant admitted that the fax advertisement did not have any opt-out language and evidently did not seek a retroactive waiver from the FCC. The plaintiff then moved for summary judgment on behalf of itself and a previously certified class. The trial court granted that motion, finding that Royal was liable to the tune of $290,000.00, i.e., $500 for each fax that had been transmitted. Continue reading “There’s a Ketch: Court Reverses Entry of Summary Judgment in Favor of Plaintiffs with Muddled Timeline”