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
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.  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. 
To view the full alert on K&L Gates HUB, click here.
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.
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.
By Pamela J. Garvie, Andrew C. Glass, Joseph Wylie II, Gregory N. Blase, and Matthew T. Houston
The Federal Communications Commission unanimously voted at its March 23, 2017, “open meeting” to begin the process for adopting rules allowing carriers to block “spoofed” number calls. These are calls that use a reputable or commonly-known telephone number to mask the actual originating number. The proposed rules would allow carriers to block calls purporting to originate from telephone numbers that (1) are not assigned to a subscriber, (2) are invalid, or (3) are assigned to a subscriber expressly requesting that its number not be spoofed. In his remarks, Chairman Ajit Pai indicated that the proposed rules are needed to target scammers impersonating federal agencies, such as the Internal Revenue Service, and to protect consumers from unwanted solicitations. Commissioner Michael O’Rielly indicated that the proposed rules aim to address illegal “robocalls” in a manner that does not affect legitimate businesses, as opposed to prior efforts to regulate such calls under the Telephone Consumer Protection Act, 47 U.S.C. § 227. The proposed rules and accompanying comments suggest an effort by the now Republican-controlled FCC to issue rules specifically intended to block unwanted robocalls, often from overseas, intended to defraud consumers.
The FCC approved both a Notice of Proposed Rulemaking and a Notice of Inquiry to solicit feedback from consumers and other parties with an interest in the proposed rules. Comments on the proposed rules will be due within forty-five (45) days after publication in the Federal Register. Final rules are unlikely to take effect earlier than late 2017.
On February 9, 2017, Rep. Robert Goodlatte (R-Va.), the Chairman of the House Judiciary Committee, introduced the Fairness in Class Action Litigation Act of 2017 (the “Act” or “H.R. 985”). The Act significantly expands the class action reforms proposed in an earlier version of the bill that stalled after passage in the U.S. House of Representatives and imposes significant new restrictions on class action lawyers and plaintiffs seeking to proceed under Rule 23 of the Federal Rules of Civil Procedure, as well as implementing new rules applicable to cases consolidated through the multidistrict litigation process. The stated purposes of the Act are to: (1) “assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims;” (2) “diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system;” and (3) “restore the intent of the framers of the United States Constitution by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.” In a press release, Rep. Goodlatte announced that the objective of the proposed legislation is to “keep baseless class action suits away from innocent parties, while still keeping the doors to justice open for parties with real and legitimate claims, and maximizing their recoveries.”
To read the full alert on K&L Gates HUB, click here.
The Consumer and Governmental Affairs Bureau of the Federal Communications Commission (the “FCC”) recently issued public notices for comments on two petitions that seek clarification or reversal of the FCC’s interpretation of the “prior express consent” of the Telephone Consumer Protection Act (the “TCPA”). Taken together, the petitions request a reversal of the FCC’s long-standing guidance that a consumer provides “prior express consent” to be contacted on a wireless number by providing that number to a business in connection with a voluntary transaction, thus allowing the business to use autodialed or prerecorded voice calls to the consumer to communicate with the consumer regarding the parties’ relationship. A change to the FCC’s interpretation of “prior express consent” could have significant impact on businesses’ communications with its existing customers.
In a non-precedential opinion issued earlier this week, the Second Circuit held in Leyse v. Lifetime Entertainment Services, LLC, that a class could not be certified in a Telephone Consumer Protection Act case because the plaintiff did not have a list of the recipients of telemarketing phone calls. The Second Circuit followed its own precedent identifying ascertainability as an “implied requirement” under Rule 23. In so ruling, the Second Circuit has further demonstrated the different approaches to ascertainability that federal circuit court apply (previously discussed here).
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.
The Ninth Circuit ruled this week that a customer alleging that his former gym sent him texts in violation of the Telephone Consumer Protection Act (“TCPA”) suffered a concrete injury under the standard set forth in 2016 by the Supreme Court in Spokeo, Inc. v. Robins (previously discussed here) but that cancellation of his gym membership was insufficient to establish revocation of consent as required in order for the gym to incur liability under the statute.
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.