RECENT NEWS
The Federal Communications Commission ("FCC"), in a recent Declaratory Ruling and Order, stated that callers must obtain consumer consent to send “ringless voicemail” to a consumer’s phone. “Ringless voicemail” is the delivery of a voicemail message directly to a consumer’s voicemail box without triggering a ringtone. All About the Message, LLC argued to the FCC that its delivery of ringless voicemail messages to consumers’ phones were not “calls” and therefore not regulated by the TCPA. The FCC disagreed. First, the FCC found that ringless voicemail constituted a “call” subject to the TCPA for the same reasons it had previously found that computer-generated text messages sent to a phone were also “calls.” In a previous ruling, the FCC declared that computer-generated text messages sent to a phone satisfied the TCPA’s requirement that “calls” be made to a “telephone number assigned to a [wireless] service,” because the wireless telephone number is a “unique identifier for the customer.” From the recipient’s perspective, the FCC had found, internet-to-phone text messaging was “functionally equivalent to phone-to-phone text messaging” and the “potential harm is identical to consumers,” regardless of where the text originates.
The FCC here concluded that ringless voicemail was “identical in function to the Internet-to-phone texting,” and therefore subject to the TCPA. Similar to internet-to-phone texting, the phone number assigned to a consumer’s wireless phone and associated with the voicemail account is a “necessary and unique identifier for the consumer.” From a “technical perspective,” the technology of ringless voicemail is “precisely the identical software” used for internet to phone text messaging. Therefore, ringless voicemails were “calls” for the same reasons that internet to phone messages were “calls” subject to the TCPA.
Additionally, the FCC found that the ringless voicemails represented the exact harms the TCPA sought to prevent: “annoyance, time spent reviewing and deleting, and potential crowding out of wanted messages.” Citing several thousand consumer comments, the FCC rejected that ringless voicemail is “non-invasive,” because “consumers cannot block these messages,” they may have to spend time “reviewing unwanted messages in order to delete them,” their phone may “signal” and “ring” when the message is delivered, and the filling of voicemail boxes “may prevent other callers from leaving important wanted messages.” Therefore, the FCC found that “ringless voicemail” to wireless phones requires consumer consent because it is a “call” made using an artificial or prerecorded voice and is thus covered by the TCPA.
The full text of the FCC’s Declaratory Ruling and Order can be found here.
Oklahoma’s Telephone Solicitation Act ("OTSA") took effect on November 1st. The OTSA (previously discussed here) prohibits sales calls that involve “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.” This broad definition encompasses more than the TCPA’s "automatic telephone dialing system," in that some automated methods of selection and/or dialing appear to be covered. The OTSA also prohibits (i) more than three sales calls in a 24-hour period; (ii) sales calls between 8 p.m. and 8 a.m.; and (iii) altering the voice of the caller to disguise or conceal their identity for purposes of injuring, or obtaining the personal information of, the answerer. The law provides for 26 exemptions, including, for example, calls made (i) for religious, charitable, political, educational, or certain other noncommercial purposes; (ii) to a recipient with an established business relationship; (iii) by most licensed financial institutions and investment advisors; and (iv) by retailers that generate most of their revenues from a physical store rather than from telephone solicitations. The law contains a rebuttable presumption that a sales call made to an Oklahoma area code is covered by the OTSA. The OTSA provides a private right of action, with damages set at $500 per violation, trebled for willful or knowing violations. It does not provide for attorney’s fees or costs.
The full text of the OTSA can be found here.
FCC PETITIONS TRACKER
Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA. Highlights of this month’s summary are provided below.
Number of Petitions Pending
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29 petitions pending
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1 petition for reconsideration of the rules to implement the government debt collection exemption
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1 application for review of the decision to deny a request for an exemption of the prior express consent requirement of the TCPA for “mortgage servicing calls”
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1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners.
New Petitions Filed
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On January 26, 2022, the National Consumer Law Center and other consumer groups filed an ex parte letter requesting that the FCC expressly exclude prerecorded scam calls and automated texts from the exemptions from the consent requirement for these calls and texts in 42 U.S.C. § 227(b).
Upcoming Comments
Decisions Released
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In the Matter of Advanced Methods to Target & Eliminate Unlawful Robocalls Call Authentication Tr. Anchor, No. CG17-59, 2022 WL 1631842, at *2 (OHMSV May 20, 2022)
CASES OF NOTE
Litigation continues to surround the definition of an ‘automatic telephone dialing system,’ or ‘autodialer,’ the use of which to call a recipient without prior consent violates the TCPA. The TCPA defines an “automatic telephone dialing system” as: equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. In Borden v. EFinancial, LLC, the Ninth Circuit rejected Plaintiff’s argument that, in order to be an autodialer, equipment must “merely generate random or sequential numbers” during its dialing process, such as generating the order to call a list of phone numbers. Based on this argument, Plaintiff asserted that Defendant violated the TCPA by using a number generator to select from a pool of customer-provided phone numbers. The Ninth Circuit disagreed and held that a machine must generate random or sequential telephone numbers in order to constitute an autodialer for TCPA purposes.
The Court first analyzed the text of the statute. Specifically, the Court found the line “to store or produce telephone numbers to be called” dependent on the clause “using a random or sequential number generator,” and reasoned that the Legislature did not intend to leave the definition of ‘numbers’ open as to include more than telephone numbers. Further, although there are several places in the statute where the phrase “number” rather than “telephone number” is used, the Court found that these are used interchangeably, and both refer to a telephone number.
The Ninth Circuit found that Plaintiff’s interpretation of an autodialer would directly contradict Duguid (discussed here), and “return this circuit back to the pre-Duguid state in which ‘virtually all’ cell phones were at risk of violating the TCPA.” Plaintiff based his argument on Footnote 7 of Duguid, which states, “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list.” The Ninth Circuit responded by noting that this quote was “cherry picked” from the footnote and the case generally, explaining that “[i]n reality, Footnote 7 merely addressed how an autodialer could both ‘store’ and ‘produce’ telephone numbers without rendering those two terms superfluous.” The Supreme Court, in drafting Footnote 7, “used the shorthand ‘numbers’ to mean ‘telephone numbers.’” The Ninth Circuit therefore affirmed the district court’s dismissal of the lawsuit.
Borden v. EFinancial, LLC, --- F.4th ---, 2022 WL 1695561 (9th Cir. Nov. 16, 2022)
In Hylton v. Titlemax of Virginia, Plaintiff alleged Titlemax placed several artificial or prerecorded voice messages to his cell phone in violation of the TCPA. Titlemax established that the former owner of Hylton’s cell phone number, Jennings, had consented to calls with a pre-recorded message and agreed to inform Titlemax of any change in his provided number, but later failed to notify Titlemax when he did change his number. Defendant therefore argued that it was entitled to summary judgement as to Hylton’s claim “because (1) it had prior express consent to contact [the number] and (2) it reasonably relied upon such consent in continuing to contact the [number].”
In its November 7th decision, the Georgia Southern District Court rejected both arguments, finding that section 227(b)(1)(A) “only exempts from the TCPA’s coverage calls ‘made with the prior express consent of the called party.’” The Court, quoting the Eleventh Circuit, distinguished ‘called party’ from ‘intended recipient,’ to emphasize that the “consent to call a given number must come from its current subscriber…and thus consent previously given lapses when [the number] is reassigned” by the cellular provider.
The Court also rejected the Defendant’s “reasonable reliance” argument. First noting that the text of the TCPA does not specifically include a “reasonable reliance” defense, and then holding that the TCPA is a strict liability statute, thereby rejecting Titlemax’s reasonable reliance argument.
Finally, the Court addressed a 2018 FCC Order, which approved the creation of a “Reassigned Numbers Database” (“RND”) and established a narrow safe harbor for callers who use the database by prohibiting “liability for calling a reassigned number if the caller proves that they accessed the most recent RND and the RND erroneously indicated that the number was still assigned to a person from whom the caller had received prior express consent.” Titlemax argued that a strict liability interpretation of the TCPA does not align with this order. The Court disagreed, holding that the “RND is meant to help callers avoid violating the TCPA by calling a reassigned number in the first place, not to insulate them from liability after they have already done so.”
The Court therefore found that “neither the text of the TCPA nor the FCC's recent rulemaking supports the creation of a defense or exemption for those who can show that they reasonably relied upon their intended recipient's prior express consent when calling a reassigned number,” and denied Titlemax’s motion for summary judgement.
Hylton v. Titlemax of Virginia, Inc., 2022 WL 16753869 (S.D. Ga. Nov. 7, 2022)
The District Court of Rhode Island granted summary judgement against pro se litigant Christopher Laccinole on October 22nd. Laccinole brought claims against the International Union of Police Associations (“IUPA”) under the TCPA for allegedly using an automatic telephone dialing system to call a number on the “Do Not Call” list.
However, this was not Plaintiff’s first time bringing a case of this nature; Laccinole has brought hundreds of TCPA cases over the last eight years. As such, the Court found that he could not rely on his status as a ‘pro se litigant’ in order be granted “the benefit of the Court’s dispensation of sticking strictly to the rules.”
Laccinole admitted to having many burner phones, with multiple phone numbers, and recording any calls received by the burner phones. He has a personal cell phone, as well as a landline and a work cell phone, along with the burner phones, and does not give out burner phone numbers to friends or family.
Defendants moved for summary judgement under the argument that Laccinole “essentially runs a business by purchasing the burner phones and welcoming the solicitous calls,” and therefore lacks standing because he is not a “consumer” as was intended to be protected by the TCPA. Defendants argued that Laccinole’s motive for setting up burner phones is to file lawsuits for profit.
While the Court acknowledged that this argument “involved elusive concepts such as motive or intent,” it nonetheless agreed and dismissed the case due to Laccinole’s inadequate response to the undisputed evidence that he “invites these phone calls and uses burner phones and the calls he records from them to file lawsuits.”
Laccinole v. International Union of Police Associations, 2022 WL 14812545 (D.R.I. Oct. 22, 2022)
The Southern District of Florida recently provided clarity on the standing requirements to sue under the Florida Telephone Solicitation Act (“FTSA”). Plaintiff alleged FTSA claims against a mortgage company who sent the Plaintiff two unsolicited text messages to her cellular phone. The Court held that the standing analysis for receipt of text messages under the FTSA should be the same as the analysis under the TCPA. Under that analysis, the Court held that the Plaintiff failed to adequately allege a concrete injury and granted the Defendant’s motion to dismiss.
The Eleventh Circuit in Salcedo v. Hanna (discussed here) held that a Plaintiff lacks standing to sue under the TCPA when the alleged injury is the receipt of a single text message. Plaintiff here argued that because the FTSA, unlike the TCPA, specifically identifies unsolicited text messages as a violation, that the standing analysis should be different under the FTSA. However, the Salcedo Court specifically found that the Plaintiff there “facially appear[ed] to state a cause of action under the TCPA” because the TCPA covers unauthorized text messages. The issue in Salcedo, instead, was that to prove Article III standing, a Plaintiff must demonstrate more than a simple statutory violation—they must demonstrate a concrete injury in fact. Thus, the Court here held that merely stating a minor facial violation of the FTSA is not sufficient to clear the bar for standing, a Plaintiff must allege a concrete injury in fact.
Following Salcedo, the Court found that the Plaintiff, Frater, did not plead a concrete injury. Plaintiff alleged that she suffered harm such as “inconvenience, invasion of privacy, aggravation, annoyance, and wasted time” as a result of the text messages she received from the Defendants. While the Court noted that the plaintiff here received two text messages instead of the one received in Salcedo, the Plaintiff still did not “further elaborate how the text messages caused [harm] or what specific injuries [she] suffered as a result.” Without pleading any “concrete injury-in-fact stemming from” the unsolicited text messages, beyond “conclusory recitation of harms like annoyance, aggravation, and wasted time,” the Plaintiff “failed to clear the qualitative floor for a concrete injury and, therefore . . . lack[ed] standing to bring a claim under FTSA.” The Court dismissed the suit for lack of standing.
Finally, the Court rejected an argument that Salcedo was “overruled by implication” in Facebook v. Duguid (discussed here). The crux of the Plaintiff’s argument was that because the injury in Duguid was receipt of unsolicited text messages, and the Supreme Court heard the case, that it implicitly found the receipt of unsolicited text messages to be a sufficient injury. However, at best, the District Court said, Duguid can be read for the implication that the “Supreme Court was satisfied that the Plaintiff had standing . . . under those particular facts.” There was no discussion of standing by the Supreme Court in Duguid, and the Eleventh Circuit, post-Duguid, affirmatively cited to and relied upon Salcedo. The Court therefore held that Salcedo was still good law in the Eleventh Circuit.
Frater v. Lend Smart Mortgage, LLC, No.22-22168, 2022 WL 4483753 (S.D. Fla. Sep. 27, 2022)
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