TCPA Watch

Business, legal and policy developments under the Telephone Consumer Protection Act.

 

1
Consumers Union Supports Stay of FCC’s July 2016 Broadnet Ruling Exempting Federal Contractors from Ban on Robocalls
2
District Court Finds Social Media Company Is Not “Sender” of Calls Under TCPA
3
FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools
4
Not So Fast: Political Organizations Amend Complaint Challenging Constitutionality of TCPA in Response to Attorney General’s Motion to Dismiss
5
Attorney General Lynch Seeks Dismissal of Political Organizations’ Challenge to the TCPA
6
Seventh Circuit Reaffirms Stance On Sender Liability In TCPA Fax Litigation
7
FCC Finds Federal Government and its Contractors Immune From TCPA Liability
8
Twitter Loses Summary Judgment Bid in TCPA Claim
9
Senate Commerce Committee Calls Up the TCPA for Review
10
Supreme Court Decision on Article III Injury-in-Fact in Spokeo Potentially Impacts Class Certification

Consumers Union Supports Stay of FCC’s July 2016 Broadnet Ruling Exempting Federal Contractors from Ban on Robocalls

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

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.

District Court Finds Social Media Company Is Not “Sender” of Calls Under TCPA

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

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.

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FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

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.

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Not So Fast: Political Organizations Amend Complaint Challenging Constitutionality of TCPA in Response to Attorney General’s Motion to Dismiss

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

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.

Attorney General Lynch Seeks Dismissal of Political Organizations’ Challenge to the TCPA

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage

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.

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Seventh Circuit Reaffirms Stance On Sender Liability In TCPA Fax Litigation

By Joseph C. Wylie II, Molly K. McGinley, Nora E. Becerra

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.

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FCC Finds Federal Government and its Contractors Immune From TCPA Liability

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

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.

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Twitter Loses Summary Judgment Bid in TCPA Claim

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

Last week a California federal court ruled that Twitter, Inc. is liable under the Telephone Consumer Protection Act (“TCPA”) for tweets it sent via text message to the new owner of a recycled cell phone number. The Court found that the online social networking service was the “sender” of the tweets, as that term is defined under the statute, rather than the authors of the tweets or the former owner of the cellphone who opted to receive the text messages.  In doing so, the Court reiterated the Federal Communications Commission (the “FCC”)’s previous caution that where autodialers are utilized to make robocalls to a wireless number, it is the caller – and not the wireless recipient of the call – who bears the risk that the call was made without the prior express consent required under the statute.  The Court also found that Twitter could not be shielded from liability under the Communications Decency Act of 1996.

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Senate Commerce Committee Calls Up the TCPA for Review

By Pamela J. Garvie and Peter V. Nelson

On May 18, 2016, the Senate Commerce Committee held a hearing to examine the TCPA’s effects on businesses and consumers, and assess whether the law is ripe for reform. The TCPA will mark its 25-year anniversary this coming December and, according to Senate Commerce Committee Chairman John Thune (R-SD), is “showing its age.”  (The hearing transcript may be found here.)

The Committee members who spoke at the hearing were, in general, divided on party lines on the need for reform. Republicans noted the rising tide of TCPA litigation – now the second most filed type of case in federal courts – and the corresponding costs in terms of money outlays, delays in providing consumers with important health, safety, and financial information, and lost innovation opportunities.  They also noted that the average payout to plaintiffs’ attorneys in TCPA suits is approximately $2.4 million, while the average consumer award is just $4.12.  Senator Roy Blunt (R-MO) observed that Congress needs to figure how to address two very different problems — the problem of scam robocalls being generated from overseas and the problem of legitimate businesses trying to reach people whose numbers have been reassigned.

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Supreme Court Decision on Article III Injury-in-Fact in Spokeo Potentially Impacts Class Certification

By Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Molly K. McGinley, Roger L. Smerage, and Eric W. Lee

On Monday, the United States Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, — U.S. — (No. 13-1339).  In rendering its decision, the Court reiterated that to establish Article III standing, a plaintiff must plead an injury-in-fact that is both particular to the plaintiff and concrete.  The Court explained that whether a plaintiff has pleaded sufficient facts to allege a concrete injury requires more than just examining whether the plaintiff has pleaded that the defendant violated a federal statute.  In particular, the Court held that “a bare procedural violation, divorced from any concrete harm,” does not suffice to “satisfy the injury-in-fact requirement of Article III.”  As such, the Spokeo plaintiff’s allegation that the defendant’s actions had violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., would not, by itself, demonstrate a plausible injury-in-fact.  Rather, “Article III standing requires a concrete injury even in the context of a statutory violation.”

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