TCPA Tracker - January 2020

Kelley Drye & Warren LLP

Recent News

Pallone-Thune TRACED Act Passes Congress, Signed Into Law by President Trump

On December 31, 2019, President Trump signed into law the Pallone-Thune TRACED Act (S. 151). The bipartisan legislation targets telemarketers who make unlawful robocalls to consumers. Among the significant elements of the legislation are provisions that expand the FCC’s ability to issue fines for intentional violations of the TCPA, that mandate implementation of call authentication frameworks for IP and TDM networks and that direct the FCC to address other methods to reduce unlawful calls.  The TRACED Act will require the FCC to complete over 20 reports and/or proceedings within the next 18 months.  Please see our advisory for a comprehensive breakdown of the law.

US Supreme Court Agrees to Review TCPA Exemption for Calls to Collect Government-Backed Debts

On January 10, 2020, the United States Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit that found unconstitutional 2015 legislation that exempted from the TCPA’s ATDS restrictions calls that are made by an entity to collect debts guaranteed by the U.S. government.  The Fourth Circuit found the exemption to be contrary to the First Amendment because it was a content-based restriction on speech and it failed to satisfy the strict scrutiny applied to such restrictions.  The Fourth Circuit, however, invalidated only the disputed provision, severing it from the rest of the TCPA’s ATDS restrictions. 

The Supreme Court granted certiorari to review the constitutionality of the exemption and the Fourth Circuit’s remedy.  Briefing and oral argument have not been set yet, but argument could come as early as late April, thereby setting the case up for decision by the end of the term in June 2020.   William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020). 

FCC Proposed $10 Million Fine for Illegal Spoofing; Issues Citation for Prerecorded Voice Messages Violations

On December 13, 2019, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture for $9,997,750 against Kenneth Moser (d/b/a Marketing Support Systems) for allegedly spoofing the outbound calling numbers associated with over 47,000 prerecorded voice calls, violating the Truth in Caller ID Act.  In addition, as was required under pre-TRACED Act law, the FCC also issued a citation and order to Mr. Moser notifying him that he violated the TCPA by making 47,610 prerecorded calls without the required identification. Additionally, 11,000 of those calls were to wireless phone numbers and were made without an emergency purpose and without prior express consent from some recipients, violating additional laws.

Enforcement Bureau Issues Citation for Prerecorded Voice Messages and Do-Not-Call Violations

On November 27, 2019, the Enforcement Bureau of the FCC issued a citation and order notifying Dante Sciarra and D&D Global Enterprises, LLC (“D&D”) that they violated the TCPA by making more than 2.5 million prerecorded calls to wireless phone numbers without required identification and without an emergency purpose or prior express consent. In addition, the Commission states that 1.4 million of the calls made were to numbers that were registered on the Do-Not-Call (DNC) Registry.

Consumer Advisory Committee Announces Two TCPA-Related Working Groups

On November 15, 2019, the FCC’s Consumer Advisory Committee (CAC) announced the rosters for two TCPA-related working groups, the Caller ID Authentication Working Group and the Robocall Blocking Working Group.  These working groups will provide advice to the FCC as it addresses robocall issues in 2020, including implementation of the TRACED Act.

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.

Number of Petitions Pending

  • 33 petitions pending
  • 1 petition for review of the CGB order issued on 12/09/19 granting Amerifactors’ petition for declaratory ruling that faxes sent and received over the Internet are not bound by the prohibitions on junk faxes that apply to telephone facsimile machines
  • 1 petition for reconsideration of the rules to implement the government debt collection exemption
  • 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”
  • 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
  • 10 applications for review of fax waiver orders under the Anda progeny (these applications for review were not addressed in the Nov. 14, 2018, Bureau order)
  • 1 application for review of the CGB order issued on 11/14/18 eliminating the opt-out language rule for solicited faxes (and 2 oppositions to the application for review)

New Petitions Filed

  • Lucas Cranor (Filed December 17, 2019) – On December 17, 2019, Lucas Cranor, an individual located in Castle Rock, Colorado, filed a petition for declaratory ruling asking the Commission to rule that (1) customers of wireless providers are able to opt-out of marketing calls and text messages and (2) wireless providers must honor such opt-out requests. Common carriers have historically been exempt from TCPA consent requirements because any promotional calls and/or text messages made to subscribers are free of cost.  ​​On December 27, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-1332) seeking comment on the petition. Comments are due on January 27, 2020, and reply comments are due on February 11, 2020.

Upcoming Comments

  • Lucas Cranor (Filed December 17, 2019) – On December 17, 2019, Lucas Cranor, an individual located in Castle Rock, Colorado, filed a petition for declaratory ruling asking the Commission to rule that (1) customers of wireless providers are able to opt-out of marketing calls and text messages and (2) wireless providers must honor such opt-out requests. Common carriers have historically been exempt from TCPA consent requirements because any promotional calls and/or text messages made to subscribers are free of cost.  ​​On December 27, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-1332) seeking comment on the petition. Comments are due on January 27, 2020, and reply comments are due on February 11, 2020.

Decisions Released

  • Amerifactors Financial Group, LLC – On December 9, 2019, the Consumer & Governmental Affairs Bureau of the FCC issued a declaratory ruling granting Amerifactors’ request that the Commission declare that faxes received via a cloud-based online fax service are not subject to the prohibitions of the TCPA.  The Commission acknowledged the changes in technology since the TCPA was passed and concluded that online faxes were equivalent to faxes sent and received as email and thus that faxes sent through such services were not sent to “telephone facsimile machines” as defined in the TCPA.
  • AmeriCredit Financial Services Inc. – On December 6, 2019, the Consumer & Governmental Affairs Bureau of the FCC issued an order granting a limited waiver to AmeriCredit Financial Services Inc., allowing it to provide only its d/b/a name, GM Financial, when placing artificial or prerecorded voice calls.
  • On November 25, 2019, Lifetime Entertainment Services, LLC withdrew its petition for declaratory ruling (originally filed December 11, 2015) asking the Commission to issue a ruling that informational calls about television programming made to subscribers are not within the scope of the TCPA.  Lifetime reported only that it “will no longer pursue the petition.”

Cases of Note

District Court in Eighth Circuit Defines ATDS Narrowly

The Western District of Arkansas has adopted a narrow definition of an ATDS, siding with the Second and Third Circuits over what technology qualifies as an autodialer.  In Yashtinsky v. Walmart, Walmart moved to dismiss Plaintiff’s claims against it, arguing that Plaintiff had failed to sufficiently allege that it used an autodialer to send Plaintiff two text messages.

The Court adopting the language of the Dominguez and King courts defined an auto-dialer as equipment with “the present capacity to randomly generate telephone numbers to be called,” in contrast to the Ninth Circuit’s expansive definition from Marks.  Despite taking a conservative stance as to the definition, the Court took a broader approach to the pleading standard. Plaintiff’s scant allegations that Walmart had used an ATDS were sufficient enough to give rise to an inference that an autodialer was used. Consequently, the Court denied Walmart’s motion to dismiss
Yashtinsky v. Walmart, No. 5:19-CV-5105 (W.D. Ark. Nov. 12, 2019)

Class Certification Vacated Due To Overbroad Class Definition

In Cordoba v. DIRECTV, LLC, the Eleventh Circuit vacated a district court’s order granting class certification.  Plaintiff sought to represent a class of all persons who received more than one call on behalf of DIRECTV while its agent failed to maintain an internal do-not-call list.

As defined, the putative class contained numerous members who never asked to be placed on an internal do-not-call list.  Without asking to be put on the do-not-call list, the Eleventh Circuit reasoned that those putative class members could not have been injured by the failure to maintain one.  Furthermore, whether each putative class member made the request would require individualized inquiries.  Finding that the district court abused its discretion in granting class certification, the Eleventh Circuit vacated and remanded its decision.

Cordoba v. DIRECTV, LLC, No. 19-23077 (11th Cir. Nov. 15, 2019)

Court Awards Damages For Calls Made To Disconnected Numbers

In Jiminez v. Credit One Bank, N.A., a $190,000 judgment was granted in the plaintiff’s favor.  The judgment was based on the Court’s finding that defendants had placed 380 calls in violation of the TCPA.  The defendants tried to reduce their exposure by arguing that 43 of those calls were made to disconnected phones, and thus liability should be reduced accordingly.

The Southern District of New York disagreed with the defendant and opined that “it is the making of the call, not its receipt, that is the predicate for statutory damages liability.”  Consequently, in the SDNY defendants are subject to an expansive interpretation if TCPA damages, even for calls that may never reach a subscriber.

Jiminez v. Credit One Bank, N.A., No. CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 203613 (S.D.N.Y. Nov. 22, 2019)

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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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