Tag: Advertising

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District Court Denies Class Certification in TCPA Case; Finds No Injury Possible Where Call Recipients Consented to Calls, Even if Consent Not in Writing
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FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools
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Update: Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA
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Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

District Court Denies Class Certification in TCPA Case; Finds No Injury Possible Where Call Recipients Consented to Calls, Even if Consent Not in Writing

By Joseph C. Wylie II,  Andrew C. Glass, Gregory N. Blase, Molly K. McGinley, and Lexi D. Bond

The Northern District of Illinois recently refused to certify a class in a case brought under the Telephone Consumer Protection Act, 47 U.S. Code § 227 (“TCPA”), on the grounds that the class could not include members who lacked Article III standing, and that determining whether individual class members had standing would lead to a multiplicity of mini-trials. See Christopher Legg et al. v. PTZ Insurance Agency LTD, et al., Case No. 14-C-10043. The decision was based in part on the Court’s finding that class members could not have suffered a concrete injury under Spokeo v. Robins (previously discussed here) if they consented to the calls, irrespective of the TCPA’s requirement that “advertising” calls require express written consent.  Thus, the Court granted the defendants’ motion to strike class allegations and denied plaintiffs’ cross-motion to certify a class. Read More

FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools

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

On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls.  The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.

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Update: Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

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

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA.  The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations.

In Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., the defendant, a pharmacy benefits manager, sent two unsolicited faxes to the plaintiff, a chiropractor.  The faxes informed plaintiff that medications covered by defendant’s health plans could help lower costs for plaintiff’s patients, and directed plaintiff to a complete list of “plan-preferred medications” on defendant’s website.  The faxes, however, did not promote defendant’s services or solicit business from plaintiff.  Nor did the faxes contain pricing, ordering or sales information.  Notably, defendant did not offer for sale any of the identified medicines, either in the faxes themselves or on defendant’s website.

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Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

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

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA.  The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations. Read More

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