TCPA Watch

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

 

1
District Court Confirms That Text Messages Completing Consumer-Initiated Transaction Are Not Telemarketing
2
Federal Government Continues Defense Against First Amendment Challenge to TCPA
3
Second Circuit Holds That Contractual Consent May Not Be Unilaterally Revoked Under The TCPA
4
U.S. House Judiciary Committee Examines Lawsuit Abuse and the TCPA
5
Dish Network Ordered to Pay $280 Million Fine, Damages in Federal TCPA Lawsuit
6
Dish Network to Pay $61.5 Million in Damages After TCPA Trial
7
It Wasn’t Me! – District Court Dismisses TCPA Action Alleging Vicarious Liability against Hotel Chains
8
Rite Aid Wins Summary Judgment in TCPA Class Action for Flu Shot Reminder Calls
9
D.C. Circuit Holds that FCC Lacks Authority to Require Opt-Out Notices for Solicited Faxes, Vacates FCC Order
10
Federal Government Not Successful in Moving to Dismiss First Amendment Challenge to TCPA

District Court Confirms That Text Messages Completing Consumer-Initiated Transaction Are Not Telemarketing

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

A recent decision from the Western District of Washington, Noah Wick v. Twilio Inc., Case No. C16-00914RSL, resulted in dismissal of a putative class action lawsuit under the Telephone Consumer Protection Act, 47 U.S. Code § 227 (“TCPA”), against Twilio Inc. (“Twilio”), a cloud communications platform service company which allows software developers to programmatically make and receive phone calls and send and receive text messages using its platform. Although several of Twilio’s arguments for dismissal were rejected, the court agreed with Twilio that the plaintiffs’ claims should be dismissed because a text message sent to complete a customer-initiated transaction is not telemarketing and the customer in this instance had given prior express consent to be contacted by providing his mobile number to the sender. Read More

Federal Government Continues Defense Against First Amendment Challenge to TCPA

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

Earlier this month, the federal government filed briefs on cross motions for summary judgment in American Association of Political Consultants v. Lynch, Case No. 5:16-00252-D (E.D.N.C.). The case challenges the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) (previously discussed here and here).  The government defended the constitutionality of the statute on several bases.

First, the government argued that the TCPA is a “valid time, place, and manner regulation” and does not distinguish between the content or nature of such calls. In doing so, the government analogized the TCPA to regulations that prevent the ringing of doorbells after certain hours and attempted to distinguish the TCPA from unconstitutional ordinances regulating signs based on the type of information conveyed.

Second, the government argued that in determining whether the TCPA is “content-neutral,” the court should disregard FCC orders providing certain “exemptions” to the TCPA. The plaintiffs contend that the exemptions illustrate how the TCPA favors some types of speech over others.  According to the government, however, (1) review of those orders is outside the court’s jurisdiction in analyzing the constitutionality of the TCPA, and (2) the “exemptions” are not actually exemptions and thus do not favor a particular type of speech.  The government further asserted that to the extent any “exemption” is actually an exemption, such as the government-debt exemption passed in 2016, it is severable from the remainder of the TCPA.

Finally, the government argued that even if the TCPA regulates the content of speech, it withstands strict scrutiny because the “protection of residential privacy” is a compelling governmental interest, and the TCPA is related to that interest where it acts to protect against the invasion of residential privacy. The government also posited that the TCPA is narrowly tailored because it is limited to a small subset of speech, rather than all potential methods of communication, and that the statute is least restrictive option to accomplish that goal.

Although it is difficult to predict how the court may rule on the parties’ cross motions, the government’s arguments provide insight regarding the bases on which the court is likely to evaluate the constitutionality of the TCPA.

Second Circuit Holds That Contractual Consent May Not Be Unilaterally Revoked Under The TCPA

By Joseph C. Wylie II and Molly K. McGinley

On June 22, 2017, the Second Circuit affirmed summary judgment for a defendant in a case of first impression, holding that under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), consent to be contacted by telephone cannot be unilaterally revoked by one party when that consent is provided as bargained-for-consideration in a bilateral contract.

In Reyes v. Lincoln Automotive Financial Services, the plaintiff Alberto Reyes, Jr. (“Reyes”) leased a new Lincoln MKZ luxury sedan from a Ford dealership, defendant Lincoln Automotive Financial Services (“Lincoln”).  The lease agreement itself provided “express[] consent” by Reyes for Lincoln to contact him “by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems…. regardless of whether you incur charges as a result.”  After the lease agreement was finalized, Reyes ceased making required payments under the agreement.  After Lincoln placed multiple calls (using both live and pre-recorded voice messages) to Reyes cellular phone, Reyes allegedly sent a letter to Lincoln revoking his consent to be contacted by Lincoln at that telephone number.

Reyes filed a complaint against Lincoln in the Eastern District of New York, alleging violations of the TCPA and seeking $720,000 in damages.  On June 20, 2016, the Eastern District of New York granted summary judgment to Lincoln, holding in part that “the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained-for consent by telephone.”

In affirming the district court’s ruling regarding revocation of consent, the Second Circuit acknowledged that the Third Circuit and Eleventh Circuit have previously ruled that a party can revoke consent under the TCPA–rulings that were the basis of the FCC’s 2015 Ruling that prior express consent is revocable under the TCPA (discussed here).  However, the Second Circuit held that the question presented by the Reyes appeal was different.  Unlike the plaintiffs in those cases who gave consent “gratuitously,” in the context of an application process, Reyes’s consent was included as an express provision of his lease agreement with Lincoln.

The Second Circuit rejected Reyes’s argument that under common law, the term “consent” is revocable at any time. While the Second Circuit agreed that the common law definition of “consent” applied to consent in the context of the TCPA, it held that “common law is clear that consent to another’s actions can ‘become irrevocable’ when it is provided in an legally binding agreement.”  In such circumstances, any modification to consent must receive the “’mutual assent’ of every contracting party in order to have legal effect.”  The Court reasoned “[i]t is black-letter law that one party may not alter a bilateral contract by revoking a term without consent of a counterparty.”

The Second Circuit further deemed “meritless” Reyes’s contention that his consent could be revoked because it was not an “essential term” of his lease.  Instead, the Court reasoned that terms of a contract are enforceable even if they are not “essential.”  “A party who has agreed to a particular term in a valid contract cannot later renege on that term or unilaterally declare it to no longer apply simply because the contract could have been formed without it.”

The Second Circuit also declined to accept Reyes’s argument that such an interpretation of consent under the TCPA would not further the statute’s remedial purpose of protecting consumers from unwanted telephone calls.  Finding “no lack of clarity in the TCPA’s use of the term ‘consent,’” the Court rejected application of the remedial rule of statutory interpretation.  In doing so, the Second Circuit recognized that businesses may insert consent clauses into standard sales contracts “thereby making revocation impossible in many instances,” but held that this “hypothetical concern” would be for Congress to resolve, not the Courts.

This ruling may provide a strong defense to revoked-consent claims brought against defendants by those in contractual relationships with those defendants.  It remains to be seen whether the reasoning set forth by the Second Circuit will be adopted by other courts.

U.S. House Judiciary Committee Examines Lawsuit Abuse and the TCPA

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

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.

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Dish Network Ordered to Pay $280 Million Fine, Damages in Federal TCPA Lawsuit

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

In a 475-page opinion issued earlier this week, the United States District Court for the Central District of Illinois ordered Dish Network Corp., to pay $280 million to the United States government and four states, marking what the government says is a record fine for telemarketing violations, including violations of the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule and the laws of California, Illinois, North Carolina, and Ohio, through what the Court called “millions and millions” of calls.

In March 2009, the states and the Federal Trade Commission (“FTC”) sued Dish Network after the company settled with 46 states for purported violations of “do not call” rules and rules governing robocalling. The Court found that Dish Network and its contractors made millions of illegal calls by calling numbers listed on the national Do Not Call Registry and by placing telemarketing calls that deliver prerecorded messages to live consumers, in violation of the TCPA and the states’ laws governing telemarketing.

Plaintiffs sought damages in the amount of $2.1 billion, but the Court determined that the amount requested, approximately 150 percent of Dish Network’s annual profits, “could materially affect Dish’s ability to continue operations.” Although the Court declined to interpret the TCPA as allowing an award “up to” $500 per violation rather than $500 per violation, as Dish Network requested, the Court exercised its discretion in awarding an amount less than $500 per violation.  An award of $500 per violation would have incurred a penalty of $8.1 billion; instead, the Court awarded $280 million, or twenty percent of Dish Network’s 2016 profits, an amount it determined to be “proportionate and reasonable” and “a miniscule fraction of maximum possible penalties and damages.”  The Court determined the reduced award to be appropriate given that Dish Network “made some efforts to avoid violations in its direct marketing and took some actions” to monitor third-party contractors while substantial enough to reflect “[t]he injury to consumers, the disregard for the law, and the steadfast refusal to accept responsibility.”

The Court further prohibited the company from violating do-not-call laws moving forward and imposed a 20-year plan for supervision of Dish Network’s telemarketing.

This is the second judgment against Dish Network issued in 2017 for violations of the TCPA (the prior judgment, issued by a federal court in North Carolina, is discussed here and here).  As the cases against Dish Network demonstrate, companies may face substantial liability based on the actions of third-party contractors.

Dish Network to Pay $61.5 Million in Damages After TCPA Trial

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

This week a federal judge in North Carolina ordered Dish Network LLC (“Dish”) to pay treble damages in the amount of $61.5 million, or $1,200 per call, to class members in a Telephone Consumer Protection Act (“TCPA”) action against Dish, Krakauer v. Dish Network L.L.C., Case No. 1:14-cv-00333, as a result of marketing efforts made by Dish’s contractor, Satellite Systems Network (“SSN”).  Under the TCPA, treble damages are available in the court’s discretion for violations that occur “willfully or knowingly.” Since the court found that Dish “willfully and knowingly” violated the TCPA, Dish was ordered to pay three times the $20.5 million jury verdict (calculated at a rate of $400 per call) against Dish (previously discussed here).

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It Wasn’t Me! – District Court Dismisses TCPA Action Alleging Vicarious Liability against Hotel Chains

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

A Michigan federal district court recently rejected a theory of vicarious liability under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In Kern v. VIP Travel Services, the court concluded that the plaintiffs failed to state a claim against hotel chains for calls independent travel agents allegedly made to generate reservations at the hotels. See generally Op., Kern v. VIP Travel Servs., Case No. 1:16-cv-00008 (W.D. Mich. May 10, 2017). Accordingly, the court dismissed the putative class action. Read More

Rite Aid Wins Summary Judgment in TCPA Class Action for Flu Shot Reminder Calls

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

A New York U.S. District Court recently granted summary judgment in favor of defendant Rite Aid Headquarters Corporation in a putative Telephone Consumer Protection Act (“TCPA”) class action, holding that calls reminding customers about the flu vaccine were “health related” and therefore Rite Aid was not required to obtain prior express written consent before making the calls. Though the opinion was filed under seal on March 30, 2017, it was made public last week. Read More

D.C. Circuit Holds that FCC Lacks Authority to Require Opt-Out Notices for Solicited Faxes, Vacates FCC Order

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

The U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 split decision, has issued an opinion that the Federal Communications Commission (the “FCC”) lacked authority under the Telephone Consumer Protection Act (“TCPA”) to regulate facsimiles that were sent with the recipient’s consent. [1]  This opinion found that an FCC rule issued in 2006 (the “2006 Order”) requiring a sender to include an opt-out notice on faxes that were solicited by the recipient was unlawful and vacated the FCC order implementing the rule. [2]

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Federal Government Not Successful in Moving to Dismiss First Amendment Challenge to TCPA

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

A North Carolina federal district court recently denied a motion by the federal government to dismiss claims raising a First Amendment challenge to a portion of the Telephone Consumer Protection Act (“TCPA”). See American Ass’n of Political Consultants v. Lynch, Case No. 5:16-00252-D (E.D.N.C.). At this early stage of the case, the government did not address the substance of the constitutional challenge.  Rather, the government asserted that the court did not have jurisdiction over the case and that the political organizations which filed the suit did not have standing to maintain suit.  The court, however, rejected the government’s arguments and allowed the case to proceed.

Background

Last year, a bi-partisan coalition of political groups filed a two-count complaint alleging that aspects of the TCPA run afoul of First Amendment free-speech protections. Specifically, the suit contends that the TCPA’s prohibition on making auto-dialed calls or texts to cell phones without the requisite consent, 47 U.S.C. § 227(b)(1)(A)(iii), imposes a content-based restriction on speech that fails to pass strict scrutiny and is unconstitutionally underinclusive.  The federal government moved to dismiss on standing and subject-matter jurisdiction grounds. In response, the plaintiffs amended their complaint to add the Federal Communications Commission (“FCC”) as a defendant and to address purported deficiencies in the original complaint.

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