Author: Tricia Stuckey

1
Jury Awards $20M Verdict For Violation of National Do-Not-Call Rules
2
Ajit Pai to be Named New FCC Chairman
3
TCPA Class-Action Plaintiff Must Arbitrate Claims
4
Court Reaffirms Dismissal of TCPA Claims By Professional Plaintiff
5
New House Energy & Commerce Committee Leaders Good News for TCPA Reform
6
Sixth Circuit Reverses Denial of Class Certification and Dismissal Under Rule 68 in Purported Unsolicited Fax Case
7
FCC Chairman Tom Wheeler Announces He Will Not Serve Out Term under New Administration
8
Courts Continue to Be Skeptical of Professional Plaintiffs in TCPA Cases
9
FCC REITERATES ITS POSITION THAT ROBOTEXTS ARE SUBJECT TO TCPA
10
TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

Jury Awards $20M Verdict For Violation of National Do-Not-Call Rules

By Joseph C. Wylie II, Molly K. McGinley, Lexi D. Bond

A Greensboro, North Carolina jury handed down a $20.5 million verdict against Dish Network (“Dish”) last week in a class-action lawsuit, Krakauer v. Dish Network L.L.C., case number 1:14-cv-00333, brought under the Telephone Consumer Protection Act (“TCPA”). The verdict came after a five-day trial presided over by U.S. District Judge Catherine Eagles of the Middle District of North Carolina. Class representative Dr. Thomas Krakauer alleged Dish was responsible for telemarketing calls placed by an authorized Dish dealer to persons whose telephone numbers were on the National Do Not Call Registry.

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Ajit Pai to be Named New FCC Chairman

By Pamela J. Garvie, Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, and Molly K. McGinley

On Friday, January 20, 2017, shortly after the conclusion of the presidential inauguration, news broke that Ajit Pai, a Republican Commissioner on the Federal Communications Commission (“FCC” or “Commission”) and its acting Chairman, will be named the permanent Chairman of the FCC. Commissioner Pai will assume the permanent chairmanship from former Chairman Tom Wheeler, who resigned effective January 20, 2017.  Because Commissioner Pai is a sitting member of the FCC, his appointment as permanent chair does not require Senate confirmation.

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TCPA Class-Action Plaintiff Must Arbitrate Claims

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

The U.S. District Court for the Western District of Washington (“Court”) recently allowed a defendant to enforce the arbitration provision in a TCPA plaintiff’s wireless agreements even though the defendant was not a party to the wireless agreements. The plaintiff in Rahmany, et al. v. T-Mobile USA, Inc., et al., Case No. 2:16-cv-01416-JCC (W.D. Wash.), brought suit against Subway Sandwich Shops, Inc. and the plaintiff’s wireless carrier, alleging that the companies violated the TCPA by sending unsolicited text messages to the plaintiff and a putative class of individuals. Shortly after filing suit, the plaintiff voluntarily dismissed the wireless carrier.  Subway, however, sought to enforce the mandatory arbitration clause in the agreement between the plaintiff and his wireless carrier, even though Subway was not a party to that agreement.  The clause required the plaintiff to individually arbitrate disputes unless the plaintiff opted out of the provision within 30 days of signing the contract, which the plaintiff had not done.

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Court Reaffirms Dismissal of TCPA Claims By Professional Plaintiff

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

In a decision released last week, the District Court for the Northern District of Illinois denied a plaintiff’s motion for an order altering the court’s order dismissing the second amended complaint without prejudice and granting it leave to file an amended complaint. In Telephone Science Corporation v. Asset Recovery Solutions, LLC, the court previously granted defendant Asset Recovery Solutions, LLC’s (“ARS”) Rule 12(b)(6) motion to dismiss the second amended complaint of plaintiff Telephone Science Corporation (“TSC”), with prejudice, for failure to satisfy the “zone-of-interests” test under the Telephone Consumer Protection Act (“TCPA”) (previously discussed here).

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New House Energy & Commerce Committee Leaders Good News for TCPA Reform

By Pamela J. Garvie, Peter V. Nelson, Elana Reman, Andrew C. Glass, Joseph C. Wylie II, and Gregory N. Blase

Last month, Rep. Greg Walden (R-OR) was selected by U.S. House of Representatives Republicans as the new Chairman of the House Energy and Commerce Committee. He succeeds Rep. Fred Upton (R-MI), who had to step down due to term limits. Today, Rep. Walden announced Energy and Commerce Committee Subcommittee leaders for the 115th Congress. Rep. Marsha Blackburn (R-TN) was named the Chair of the Subcommittee on Communications & Technology and Rep. Leonard Lance (R-NJ) will serve as Vice Chairman.

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Sixth Circuit Reverses Denial of Class Certification and Dismissal Under Rule 68 in Purported Unsolicited Fax Case

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

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.

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FCC Chairman Tom Wheeler Announces He Will Not Serve Out Term under New Administration

By Pamela J. Garvie, Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Molly K. McGinley, and Roger L. Smerage

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.

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Courts Continue to Be Skeptical of Professional Plaintiffs in TCPA Cases

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

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.

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FCC REITERATES ITS POSITION THAT ROBOTEXTS ARE SUBJECT TO TCPA

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

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.

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TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

On Monday, the U.S. Department of Justice (“DOJ”) declined to intervene in Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.).  As previously discussed here, a class of plaintiffs sued President-Elect Trump’s campaign alleging violations of the Telephone Consumer Protection Act (“TCPA”) in connection with text messages sent during the campaign. In seeking dismissal of the suit, the campaign argued that the TCPA does not pass muster under the First Amendment.  Specifically, the campaign asserted that Congress’s November 2015 exemption of calls relating to government debt constitutes “preferential treatment” and qualifies as a “blatant and egregious form of content discrimination.”

The DOJ did not provide a reason for declining to intervene, and the campaign is now faced with the prospect of going it alone in its First Amendment challenge to the TCPA.

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