On March 16, 2018, in a long-awaited decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated key provisions of the 2015 Federal Communications Commission order regarding the Telephone Consumer Protection Act, 47 U.S.C. § 227, including provisions regarding the definition of an autodialer and calls to reassigned wireless numbers. Click here for a full discussion of the decision.
On June 13, the U.S. House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act”. The House Energy & Commerce Committee has primary jurisdiction over the TCPA. But the Judiciary Committee oversees all matters related to the administration of justice in federal courts and has been active on a number of litigation reform matters, including most recently class action reform legislation. The Subcommittee held the hearing in response to the fact that between 2010 and 2016, TCPA case filings increased by 1,272%, and today TCPA lawsuits are the largest category of class actions filed in federal court. Although some of the Subcommittee’s Democratic members, including Ranking Democrat Steve Cohen (D-TN), questioned the Committee’s jurisdictional interest in the TCPA, the hearing focused on TCPA reform––specifically with an eye toward reducing lawsuit abuse, and the Republicans said they would work with Energy & Commerce on any legislative proposals.
Rep. Virginia Foxx (R-NC) has introduced a bill, H.R. 740 (the “Robo Calls Off Phones Act” or “Robo COP Act”), to “stop the intrusion of political robocalls in homes across America.” Rep. Foxx stated that “politicians made sure to exempt political robo-calls from the power of the ‘Do Not Call’ registry. If these calls weren’t such a nuisance, their blatant exclusion would be laughable.” Claiming that eligible voters receive more than 20 political prerecorded voice calls per day, Rep. Foxx seeks through the bill to end the “robocall loophole” for politicians.
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.
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.
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.
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).
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.
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.