TCPA Connect - September 2016

by Manatt, Phelps & Phillips, LLP
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Manatt, Phelps & Phillips, LLP

In This Issue:

  • SPECIAL FOCUS: Responses to Retail Webinar Attendee Questions
  • California Court Less Than Friendly to Text Invite TCPA Suit
  • Each Call Requires Concrete Injury, California Court Rules
  • FCC’s Robocall Strike Force Meets, Considers Solutions

SPECIAL FOCUS: Responses to Retail Webinar Attendee Questions

By Marc Roth

During our hugely successful “Avoiding TCPA Pitfalls: Essential Guidance for Retailers” webinar this summer, we received dozens of questions from attendees, most of which we were not able to address during the closing minutes of the presentation. But, we held on to the questions and present below responses to those that we felt would be most relevant to readers. Please note that these are general responses and are not intended as, and should not be construed to be, specific legal advice. Should you have any specific follow-up questions on these responses, please reach out to the editors.

Q: I thought mobile phones always trigger the TCPA even if manually dialed? Especially in certain states? Not exactly. The TCPA is only triggered when communicating with consumers on their mobile phone when using an autodialer. That said, the FCC’s July 2015 rulemaking declared that a dialing system that is used to manually dial numbers may be an autodialer if it has the current or future capacity to autodial. With regard to state laws, there are about half a dozen states that prohibit calling or texting a mobile device without the consumer’s consent, regardless of whether an autodialer is used. But this restriction only applies to commercial, and not informational or transactional, communications.

Q: If there is time, could you please address TCPA applicability to texts delivered to cell phones? The FCC has expressly stated that text messages delivered to cell phones are treated as calls under the TCPA.

Q: If you use a prerecorded message that is only informational in nature (e.g., fraud prevention), does prior express consent need to be obtained? It depends on where the call is terminated. If the call is to a landline and contains no marketing content, no consent is required. On the other hand, if the call is to a mobile phone, and is purely informational, the caller will still need the recipient’s express consent, which may generally be satisfied by the caller receiving the number from the call recipient.

Q: Do autodialed calls to mobile numbers assigned to a business fall under the TCPA? For calls to “residential” numbers, can we assume “residential” means a call to a consumer landline phone? Unless expressly exempted, all autodialed calls to a mobile phone require some level of consent, even if to a business. The TCPA and FCC rules do not distinguish between consumer and business lines when calling mobile numbers. This distinction is only relevant in regard to do-not-call regulations, since these rules only apply to consumer numbers. However, as some people use a single phone line for both personal and business purposes, a more detailed analysis of the source and use of the number is required in order to determine whether the DNC rules apply.

Q: Is the company required to determine whether the consumer’s phone number is a landline or cell phone? Or is this information provided by the consumer? A company must itself determine whether a number terminates with a landline or mobile phone. As the TCPA is a strict liability statute, even if a consumer provides her mobile phone number in response to a request for a home (landline) phone, a call to that number will still be treated as a call to a mobile device under the TCPA.

Q: Can voice recordings giving consent to be marketed (via inbound call) comply with the ESIGN Act? Yes, under FCC rules, a company may obtain a consumer’s express written consent for marketing calls via an inbound call if conducted in accordance with the requirements of the ESIGN Act.

Q: Does a check box work as a signature for prior express written consent (PEWC)? A check box may satisfy the FCC regulations for prior express written consent if the box is unchecked and is accompanied by the applicable FCC consent language in accordance with the ESIGN Act.

Q: Is it imperative to be able to store and produce (if need be) the check box that is used for the consumer to affirmatively agree to receive telephone calls? It is important to maintain some proof of a consumer opt-in in the event a call is ever challenged. While the best proof may be a copy or screenshot of the exact web page a consumer completed and submitted for this purpose, if this is impossible, it may be acceptable to maintain a file of the opt-in that includes the information that the consumer provided as well as a date and time stamp of and IP address associated with the opt-in.

Q: A retailer announces via the in-store intercom: text COUPON to 12345 to get 10% off your purchase today. Is this allowed? Can the response include an invitation to subscribe via web form, e.g., Your 10% off code is XYZ. Click to subscribe: bit.ly123? Under the FCC’s July 2015 ruling, a retail store may instruct consumers to text a word to a short code to obtain a discount code by reply text without including the required language for prior express written consent. Under the FCC rules, the reply text must only contain the requested information (i.e., the discount code) and may only be used once. Including any other information in the reply text (such as an invitation to subscribe to the retailer’s savings or loyalty program via a web link) may present some risk as such content may be viewed as exceeding the consumer’s specific request.

Q: What are your thoughts on placing express written consent language below a “submit” button? The FCC regulations require that express written consent language be presented clearly and conspicuously so that it is not missed by consumers. Placing this language below a submit button presents some risk of not satisfying this requirement if displayed in a way that may be missed by the consumer.

Q: Does consent override DNC? For example, customer gives PEWC on retailer website but that number is also listed on the national DNC. It depends. If the PEWC language makes clear that the consumer is agreeing to receive marketing communications to a telephone number that is on a DNC registry, then yes, the consent will override the registry listing.

Q: What about making service calls to numbers on an internal DNC list? Pure service calls are exempt from the internal DNC regulations. DNC applies only to marketing calls.

Q: If customers provide PEWC after their request to be added to the internal DNC registry, should they be removed from the internal DNC registry? The PEWC opt-in may, depending on its wording and the context in which it was given, trump the internal DNC request.

Q: Does affirmative agreement need to specifically state “I agree/consent” or does something like “reply YES to receive msgs” constitute an affirmative agreement for text messages? The TCPA and FCC regulations do not specifically dictate the precise language that must be used to obtain a consumer’s express opt-in. But the language must clearly and unambiguously reflect the consumer’s desire to opt in.

Q: Are text messaging platforms liable under the TCPA? They are just message conduits. A number of courts have held and the FCC has ruled that texting platforms will not be liable under the TCPA as the “maker of a call” in certain circumstances, particularly when users of the platform (and not the platform itself) control the content and transmission of the messages. Said otherwise, the more involvement a platform operator has in the message development and transmission process, the greater chance it may be found responsible under the TCPA.

Q: With text messages, can the consent be asked for in that first text for future texts or does that bump it out of the exception? If you are referring to the one-time exception to respond to a consumer’s specific request, the FCC was pretty clear in its rulemaking that the one-time response must only include content that responds specifically to the consumer’s request. That said, the ruling responded narrowly to a petition that sought the one-time exception for a single purpose, so it remains unclear whether seeking additional consent would be acceptable. On balance, given the risks associated with violating the TCPA, it would be prudent to only include responsive content.

Q: Do you need consent to make a marketing call without an autodialer? What if you don’t know if it is a mobile or landline phone? As noted above, the onus is on the caller to determine whether a number is associated with a mobile or landline phone. Relying on how a consumer identified her number is not a defense to liability under the TCPA. If a marketing call is made without an autodialer and does not introduce a prerecorded message, no consent is required for TCPA purposes, but certain states do still require a consumer’s consent.

California Court Less Than Friendly to Text Invite TCPA Suit

A California federal court judge recently ruled that a mobile app company is not liable under the Telephone Consumer Protection Act where a friend of the plaintiff initiated a text invitation to download and join the mobile app.

Terry Cour II received the following text message: “TJ, check this out!1f360.co/i/g2a5iJaTB005.” Cour texted back: “Who is this?” and received another text stating, “I’m sorry, but we weren’t able to understand your message. Please reply YES, NO, or HELP.” Instead of replying, Cour filed suit in California federal court against Life360 asserting a violation of the TCPA and California’s unfair competition law.

Cour claimed that once users downloaded the Life360 app, they were asked, “Want to see others on your map?” Users who click on the “Yes” button are asked permission for Life360 to access their contacts. Users who allow permission are brought to a screen to “Add Member[s],” with “Recommended” contacts preselected. A user can select additional contacts or deselect the preselected individuals before being instructed to press the “Invite” button.

Cour argued that users were not given any information on how invitations would be sent, with Life360 retaining “full control” over the content of the text message, whether it would be sent, and the actual transmission of the text.

But U.S. District Court Judge Thelton E. Henderson viewed the process differently.

He agreed with Life360 that Cour failed to state a TCPA claim because his allegations did not establish that the defendant “made” the unwanted call. He looked to last year’s Federal Communications Commission Declaratory Ruling and Order for support.

There, the FCC explained that depending on the totality of the facts and circumstances of a particular call, a decision maker should consider “who took the steps necessary to physically place the call” and “whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.”

The order also examined the potential TCPA liability of two companies, TextMe and Glide. On the one hand, the FCC found that Glide “made” calls because it automatically sent invitation texts of its own choosing to every individual in a user’s contact list with “little or no obvious control” by the user, but TextMe evaded liability because users must select the option to invite friends, select the contacts to receive an invitation, and then choose to send the text.

In rejecting the plaintiff’s contention that because Life360 did not inform app users about how the selected contacts would be notified, Judge Henderson concluded that “Life360 is … much more similar to TextMe.” “[I]t makes no difference, for purposes of determining who ‘makes’ a call under the TCPA, whether an application informs the user how invitations will be sent,” the court said. “The goal of the TCPA is to prevent invasion of privacy, and the person who chooses to send an unwanted invitation is responsible for invading the recipient’s privacy even if that person does not know how the invitation will be sent.”

Judge Henderson was also not persuaded by the fact that Life360 automatically preselects certain contacts to invite while TextMe does not. “This difference is immaterial,” he wrote. “Prior to reaching the screen on which the contacts have been pre-selected, the Life360 user must first indicate a willingness to share contacts with the app and, upon answering that question in the affirmative, has the option to de-select any contacts whom the user does not want to invite—and, as Cour’s counsel conceded at oral argument, can choose to de-select all of the pre-selected contacts so as not to invite anyone.”

Invitations are not sent until the user presses the “invite” button, the court added, and are only sent to those contacts selected by the user. “As the FCC found regarding TextMe, these ‘affirmative choices by the app user’ lead this Court to conclude that it is the app user who initiates the invitation and, therefore, is the maker of the call. Life360 is not the maker of the call and, consequently, cannot be liable under the TCPA.”

To read the order in Cour v. Life360, Inc., click here.

Why it matters: Thanks to the FCC’s 2015 Declaratory Ruling and Order and the Cour order, apps that require a user to invite others will avoid TCPA liability. By requiring “affirmative choices by the app user,” such as electing to invite friends, selecting the friends to invite, and pushing the button to send the invitations, an application can say with some safety that the user “made” the call for purposes of the statute.

Each Call Requires Concrete Injury, California Court Rules

In a resounding victory for a Telephone Consumer Protection Act defendant, a California court held that a plaintiff was required to demonstrate she suffered a concrete injury for each individual call that she alleged violated the statute to establish standing.

As the plaintiff was unable to do so, the court dismissed the suit.

Elisa Romero failed to make payments on an amount owed to her Macy’s credit card. In an effort to collect on the debt, Department Stores National Bank began calling her cell phone, the only phone number Romero had provided for her account. According to her California federal court complaint, the defendants called her more than 290 times using an automated telephone dialing system over the course of six months.

Romero said she answered only three of the calls (one each in July, September, and December) and asked the defendant to stop calling her on each occasion. She also claimed that the phone calls caused her “severe and substantial emotional distress, including physical and emotional harm,” including “anxiety, stress, headaches … back, neck and shoulder pain, sleeping issues … anger, embarrassment, humiliation, depression, frustration, shame, lack of concentration, dizziness, weight loss, nervousness and tremors,” and “family and marital problems that required counseling.”

The defendant filed a motion to dismiss, contending that Romero lacked Article III standing. Emphasizing that a plaintiff must demonstrate standing for each claim, U.S. District Court Judge Cathy Ann Bencivengo agreed.

“Each alleged violation is a separate claim, meaning that Plaintiff must establish standing for each violation, which in turn means that Plaintiff must establish an injury in fact as if that was the only TCPA violation alleged in the complaint,” the court said. “Plaintiff does not satisfy this burden.”

A statutory violation alone does not eliminate the requirement that a plaintiff establish a concrete injury caused by that statutory violation, Judge Bencivengo wrote, citing the recent U.S. Supreme Court decision on standing, Robins v. Spokeo.

“Although a defendant violates the TCPA by dialing a cell phone with an ATDS, it is possible that the recipient’s phone was not turned on or did not ring, that the recipient did not hear the phone ring, or the recipient for whatever reason was unaware that the call occurred,” the court said. “A plaintiff cannot have suffered an injury in fact as a result of a phone call she did not know was made.”

The court then analyzed Romero’s claims of injury in fact by considering the calls in three categories: calls the plaintiff was not aware of because her phone did not ring or she did not hear it ring; calls she heard ring on her phone but did not answer; and the calls she answered and in which she spoke with a representative of the defendants.

With regard to the calls the plaintiff did not hear ring—either because her ringer was off or she did not have her phone with her when the calls occurred—“none of her alleged injuries in fact are plausible or could be traceable to the alleged TCPA violation,” the court said. “That Defendants placed a call to Plaintiff’s cell phone using an ATDS is merely a procedural violation.”

For Romero to have actually suffered an injury in fact, “she must, at the very least, have been aware of the call when it occurred,” Judge Bencivengo wrote. “Accordingly, because Plaintiff has not, and likely could not, present evidence of an injury in fact as a result of calls placed by Defendants to Plaintiff’s cell phone of which Plaintiff was not aware, Plaintiff lacks standing to assert a claim for a TCPA violation based on any of these calls.”

The court reached a similar conclusion with regard to the calls the plaintiff heard ring but did not answer.

“No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing,” the court said. “When someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally. Viewing each call in isolation, whether the phone rings as a result of a call from a family member, a call from an employer, a manually dialed call from a creditor, or an ATDS dialed call from a creditor, any ‘lost time, aggravation, and distress,’ are the same. Thus, Defendants’ TCPA violation (namely, use of an ATDS to call Plaintiff) could not have caused Plaintiff a concrete injury with respect to any (and each) of the calls that she did not answer.”

Finally, the court turned to the calls Romero answered and again found she lacked a concrete injury. “Plaintiff does not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually,” the court said, and therefore, she “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA.”

Judge Bencivengo was not persuaded by case law proffered by the plaintiff where the courts considered the calls as a whole, not evaluating standing separately for each call alleged, finding the reasoning circular.

“Under Spokeo, if the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing,” she wrote. “[T]he mere dialing of a cellular telephone number using an ATDS, even if the call is not heard or answered by the recipient, does not cause an injury to the recipient. That the TCPA allows private suits for such calls does not somehow elevate this non-injury into a concrete injury sufficient to create Article III standing.”

Romero’s harm was divorced from the alleged violations of the TCPA, the court added, because she “would have been no better off had Defendants dialed her telephone number manually.”

Granting the motion to dismiss, the court closed the case.

To read the order in Romero v. Department Stores National Bank, click here.

Why it matters: TCPA defendants can find a lot to like in the Romero decision, beginning with the court’s position that a plaintiff must demonstrate an injury in fact for each call listed in the complaint that allegedly violated the statute. In addition, the court was adamant that a plaintiff cannot establish standing for calls that she did not hear and calls that she did hear ring but did not answer.

FCC’s Robocall Strike Force Meets, Considers Solutions

The Federal Communications Commission held its first meeting of the Robocall Strike Force, with more than 33 companies and organizations represented for the concerted effort to strike out robocalls.

An industry-led Strike Force group committed “to developing comprehensive solutions to prevent, detect, and filter unwanted robocalls” answered the call of FCC Chairman Tom Wheeler to meet twice a week through October to tackle the issue. Participants include representatives from Apple, Comcast, and a group led by AT&T CEO Randall Stephenson, among others.

Specifically, the group will focus on authentication standards for VoIP calls including gateway verification, tools to allow third parties to develop call filtering solutions, and cross-carrier and multi-carrier efforts to detect and prevent unwanted and fraudulent calls.

Three of the Commissioners spoke at the first meeting, with Chairman Wheeler opening the gathering by reminding participants of the scope of their opponent. “Robocalls are a scourge,” he said. “It’s the number one complaint that we hear from consumers at the Commission. We receive more than 200,000 complaints a year.”

Urging the group to “get creative” and implement cross-carrier joint efforts, the Chairman suggested the possibility of a “Do Not Originate” list. Commissioner Ajit Pai also spoke at the meeting and offered some potential solutions. He wondered if the FCC should encourage Congress to pass the Anti-Spoofing Act of 2015, intended “to crack down on foreign callers that prey on Americans using spoofed Caller ID for their robocalls,” or if the Commission should take more enforcement actions against robocallers.

Commissioner Pai also asked the Strike Force to consider how to make it easier for consumers to tell the FCC about robocalls and for the Enforcement Bureau to track down and stop the operations of fraudulent robocallers. Other potential ideas: the creation of a reassigned numbers database to give callers the ability to avoid dialing wrong numbers by mistake as well as carving out a safe harbor for telephone companies seeking to provide call-blocking services to their customers in an attempt to encourage experimentation.

To read the statements of the Commissioners at the Robocall Strike Force meeting, click here.

Why it matters: By October 19, the Strike Force will report to the FCC on “concrete plans to accelerate the development and adoption of new tools and solutions,” the group’s chair said, including answers to the Commissioners’ questions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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