The wireless trade group CTIA–The Wireless Association recently asked the Federal Communications Commission (“FCC”) to reject a petition that asks the agency to declare that text messages fall under the FCC’s Open Internet Order. Twilio, Inc., a cloud-based company that manages and facilitates the sending of automated text messages, filed the petition, which seeks to have the FCC confirm that text messages are telecommunication services subject to Title II of the Communications Act of 1934 and the protections of the Open Internet Order. The petition argues that wireless carriers use imprecise filtering systems to block millions of text messages that people have asked to receive, including critical information from their schools. It also claims that wireless carriers are violating the FCC’s rules under the Telephone Consumer Protection Act, 47 U.S.C. § 227, by blocking text messages without giving consumers a choice or making them aware of the practice.
At least two courts have recently dismissed TPCA claims where the plaintiffs appeared to manufacture standing. In Telephone Science Corp. v. Asset Recovery Solutions, the Northern District of Illinois dismissed a TCPA complaint brought by a plaintiff whose business model involved the intentional receipt of autodialed or prerecorded calls. There, the plaintiff, Telephone Science Corp. (“TSC”), operated a service called “Nomorobo,” designed to block certain unwanted calls. TSC uses a “honeypot” of telephone numbers, analyzes calls made to those numbers to identify numbers that TSC’s service identifies as being made using an autodialer or artificial or prerecorded voice calls, and then blocks calls made to Nomorobo subscribers made using those identified numbers.
Please join four of our partners with a broad range of experience involving the Telephone Consumer Protection Act (TCPA) for a webinar addressing important topics relating to what presently is one of the most ubiquitous statutes in class action litigation. The webinar will cover:
- An overview of the TCPA and related regulations
- Current litigation trends and developments under the TCPA
- Impact of recent orders of the Federal Communications Commission
- Practical effects on businesses and compliance issues
- ACA International’s appeal regarding automatic telephone dialing systems
- Gregory N. Blase, Partner, Boston
- Andrew C. Glass, Partner, Boston
- Molly K. McGinley, Partner, Chicago
- Joseph C. Wylie II, Partner, Chicago
To register, please click here.
Consumers Union, the consumer advocacy arm of Consumer Reports, has filed a letter in support of the National Consumer Law Center’s (NCLC) request that the Federal Communications Commission (FCC) stay its recent ruling on Broadnet Teleservices LLC’s Petition for Declaratory Ruling in the on-going rulemaking matter In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 while that ruling is under appeal. The July 5, 2016, Broadnet Ruling (previously discussed here) held that the TCPA, and its ban on autodialed calls to cellular telephones, does not apply to calls placed by the federal government itself, or its contractors, so long as the calls are placed in the course of conducting “official government business” and, for calls placed by contractors, the calls comply with the government’s instructions. On July 26, 2016, the NCLC moved the FCC to reconsider its ruling and stay its effect until the motion is resolved. Consumers Union is joining the request for the stay as part of its “End Robocalls” campaign, which purportedly seeks “technological solutions to the unwanted robocall problem,” according to the group’s letter to the FCC. If the requested stay is granted, federal government employees and contractors will continue to be subject to the TCPA unless the Broadnet Ruling is upheld.
A federal court in California recently dismissed a class action accusing mobile application company Life360, Inc. (“Life360”) of violating the TCPA on the grounds that the company could not be liable for texts initiated by app users. The Court found that Life360 was not the “sender” of the texts initiated using its platform and, therefore, could not be held liable under the TCPA, because users—not the application itself—selected when and to whom the texts were sent.
Life360 operates a mobile phone application that allows users to communicate with and see the location of their friends and family. Users of the app who provide Life360 with access to their phone’s contact list can direct the app to “Invite” certain contacts to use the app and share their location and exchange messages with the user. According to the complaint, the user is not instructed on how or when invitations will be sent. Plaintiff Terry Cour alleged that Life360 sent him unwanted texts even though he was not a Life360 user and had never downloaded the app onto any device. Following the receipt of text messages from the app, Cour filed a lawsuit on behalf of himself and a class of persons similarly situated, alleging that Life360’s texts violated the TCPA.
On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls. The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.
A bi-partisan coalition of five political groups, seeking a declaration that the Telephone Consumer Protection Act (TCPA) violates the First Amendment, recently filed an Amended Complaint in American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.). The Amended Complaint addresses purported deficiencies in the original Complaint that Attorney General Loretta Lynch raised in her motion to dismiss the case.
The Amended Complaint adds the Federal Communications Commission (FCC) as a defendant and alleges that the FCC—in conjunction with Congress—intended to “create content-based exemptions to the cell phone call ban based both on the content of the speech involved and the identity of certain favored speakers.” In response to the argument that the district court lacks subject matter jurisdiction in light of the Hobbs Act, 28 U.S.C. § 2342(a), the Amended Complaint asserts that (1) the action is challenging a “federal statute, as it is content-based and regulates Plaintiffs’ fully-protected, political speech,” and not the FCC orders and rules implementing the TCPA, and thus (2) it is not subject to the Hobbs Act’s strict procedural requirements applicable to challenges to FCC rules.
Additionally, in an attempt to demonstrate standing, the plaintiffs attached to the Amended Complaint a series of revised declarations of various representatives of the groups bringing suit. The declarations, unlike those submitted with the original complaint, explain how the TCPA’s prohibitions on calls to cellular telephones using automatic telephone dialing systems, prerecorded voice messages, or automated voice messages impact the calling practices of the plaintiffs’ members.
Lynch’s response is due to be filed on August 19, 2016; the FCC’s response will be due within 60 days of being served with a summons and the Amended Complaint.
On Friday, the Attorney General of the United States responded to a lawsuit brought by a bi-partisan coalition of political groups challenging the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.) (previously discussed here) the plaintiffs seek a declaration that the TCPA violates the First Amendment. The lawsuit asserts that the statute imposes a content-based restriction on speech that fails to pass strict scrutiny.
The Seventh Circuit recently reaffirmed its holding in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793 (7th. Cir. 2016), which established that agency principles apply in determining whether a fax was sent “on behalf of” a sender under the TCPA.
On June 16, 2016, the court in Paldo Sign & Display Co. v. Wagener Equities, Inc., No. 15-1267, 2016 WL 3348738 (7th Cir.) held that TCPA fax regulations do not impose strict liability on entities whose products or services are being promoted by third parties. In Paldo, a company sued Wagener Equities under the TCPA after receiving an unsolicited fax promoting Wagener’s services. That same communication allegedly was faxed to over ten thousand recipients via a third party distributor, Marketing Research, also known as B2B, which exposed Wagener to potential damages exceeding five million dollars. Paldo maintained that Wagener was liable for B2B’s transfer of the faxes despite never having approved the ads.
On July 5, 2016, the Federal Communications Commission (the “FCC” or “Commission”) released a Declaratory Ruling clarifying that the Telephone Consumer Protection Act (the “TCPA”) does not apply to autodialed or prerecorded- or artificial-voice phone calls, including text messages, made by the federal government and its contractors who are acting within the scope of their authority. The FCC did not address whether the TCPA continues to apply to state and local governments and their agents.