The Sixth Circuit reversed a lower court’s denial of class certification and dismissal of an action following a lapsed offer for individual judgment in a decision released earlier this month. In doing so, the Sixth Circuit held that a defendant opposing class certification in a Telephone Consumer Protection Act (“TCPA”) case on the ground that issues of individualized consent predominate must do more than present “speculation and surmise to tip the decisional scales” because a “possible defense, standing alone, does not automatically defeat predominance.” The court also held that a defendant may not escape potential class-wide liability through an unaccepted offer of individual judgment.
On Wednesday, the Federal Communications Commission (“FCC”), which has regulatory authority over the Telephone Consumer Protection Act (“TCPA”), announced that Chairman Tom Wheeler plans to resign as of January 20, 2017, when President-Elect Trump is expected to be inaugurated. Appointed in 2013 by President Obama, Chairman Wheeler’s term was not set to expire until 2018. It is tradition, however, for a sitting chair whose term extends into a new presidential administration to resign when the new president is from the other political party.
In a ruling issued on December 1, 2016, the District Court for the Central District of California denied class certification in a Telephone Consumer Protection Act (“TCPA”) case due to the putative class representatives’ status as a so-called professional plaintiff. This ruling continues a trend in which courts have significantly limited the ability of professional plaintiffs to bring TCPA class actions. Courts increasingly view professional plaintiffs’ conduct in inviting the complained-of communications as a basis to challenge these plaintiffs’ standing and rendering them inadequate class representatives.
On November 18, 2016, the Federal Communications Commission’s Enforcement Bureau (“Bureau”) released an Enforcement Advisory clarifying the TCPA’s limits on the use of autodialed text messages, known as “robotexts.” The Bureau confirmed that its rules restricting the use of automatic telephone dialing systems include those that deliver texts in addition to those that place calls. The Bureau also clarified the applicable rules regarding consent, texts to reassigned wireless numbers, advertising texts, and enforcement.
Consistent with prior FCC guidance, the Bureau confirmed that the TCPA prohibits autodialed text messages, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device unless the robotexts fall into one of three exceptions: (1) texts made for emergency purposes; (2) texts that are free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) texts made solely to collect debts “owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii). The Bureau confirmed that text messages sent through texting apps, “Internet-to-phone” text messaging, and similar technology meet the statutory definition of an autodialer, and therefore fall within these restrictions.