CASES OF NOTE
FCC Sheds Light on Significant TCPA Consent Changes in Notice of Proposed Rulemaking
The FCC has adopted a Notice of Proposed Rulemaking which proposes numerous changes and clarifications to the TCPA, most notably regarding do-not-call requests and consent revocation. Before adopting the Notice, the FCC put forth a fact sheet explaining its purpose in the planned rulemaking, which is titled “Strengthening Consumer Protections Against Unwanted Robocalls.”
The rule would codify the FCC’s current policy that a robocall or text recipient may revoke consent through any “reasonable means” that express a desire to opt-out of or stop further communications. This would codify certain existing methods of revocation, including recipients responding “STOP” to a text message, and create a rebuttable presumption that any point of contact via text, email, or call where the recipient would have “reasonable basis to expect” to reach the caller suffices as revocation.
Although the rule would allow a one-time confirmation message to the opting-out recipient, the confirmation message would have to be singular and without any promotional information. Importantly, the rule would also require that senders honor revocation-of-consent requests within 24 hours of receipt.
Regarding wireless carrier calls and texts to subscribers, the rulemaking seeks to revoke its earlier conclusion that consent is not needed when the recipients are subscribers to sending carriers. Rather, the FCC proposes a “qualified exemption” where a subscriber has not provided consent, and several conditions are met by the sender. These conditions include a limitation to three robocalls or texts or less to a wireless number within a 30 day period, limitation of one minute or less for a call and 160 characters per text, a simple opt-out mechanism, and statement of the name of the provider at the start of the message. Finally, opt-out requests to wireless service providers must be honored immediately.
Substantial Amendments to Florida “Mini-TCPA” Take Effect
On May 25th Florida Governor Ron DeSantis signed into law House Bill 761, which consists of significant amendments (discussed here) to the Florida Telephone Solicitation Act (“FTSA”). The bill takes a very different approach than the 2021 amendments to the FTSA, which had significant broadening effects and led to a wave of class action lawsuits under the statute.
The 2023 amendments:
- Clarify the definition of an “autodialer” to be an automated system that is used to both select and dial telephone numbers;
- Limit restrictions to sales calls that were unsolicited;
- Expand the definition of “express written consent” for FTSA purposes such that an electronic or digital signature, or checking a box, can constitute consent to calls or texts;
- Limit standing for lawsuits based on unsolicited texts to those persons who responded “STOP” to a sending and continued receiving marketing texts more than 15 days later.
The amendments not only took effect immediately upon DeSantis’ signature, but also apply retroactively to any pending FTSA class actions that have not reached the certification stage.
Court Finds Complaint Fails to Allege Date of Revocation of Consent, Dismisses Case
The Eastern District of North Carolina recently dismissed a TCPA claim filed against Defendant Humana, Inc., an insurance company that provides Medicare Advantage and Medicare Part D prescription drug plans. Plaintiff alleged that he received multiple pre-recorded calls from Defendant and continued to receive calls after he advised both the callers and Defendant that he was not interested in the service and did not want to receive any more calls.
The Court considered it relevant that Defendant, as an offeror of Medicare Part D plans, was required to establish a medication therapy management (“MTM”) program, which has a complex enrollment and opt-out structure. While Plaintiff did not allege that he fit the criteria for inclusion in the MTM program, Plaintiff only sought to hold Defendant liable for those calls received after he “revoked” consent by asking not to be called.
The Court found the Plaintiff’s alleged revocation defective for a number of reasons. First, Plaintiff did not allege a specific date on which he revoked consent to receive MTM calls. Therefore, the Court could not determine which alleged calls were plausibly actionable, because Plaintiff did not allege which of the calls alleged occurred after the date of revocation. Further, Plaintiff did not sufficiently allege whether he revoked consent for a particular portion of the MTM program or whether he expressed a desire to be removed from the program entirely. The Court held Plaintiff’s allegations that he “asked to be removed from the calling lists” to be “insufficiently vague” in light of the complex opt-out requirements of the MTM program. Plaintiff did not allege whether he opted out of only a particular portion of the program, opted out for a particular time frame, or if he had opted out of the program entirely.
Because the Court found that Plaintiff had not adequately alleged revocation of consent, it dismissed the complaint.
Coleman v. Humana, Inc., No. 5:22-CV-321-BO, 2023 WL 3485242 (E.D.N.C. May 16, 2023)
Federal Florida Court Finds that Unsolicited Fax Advertisements Violate TCPA Upon Being Sent, Even if Not Received
The U.S. Middle District of Florida held that that the act of sending an unsolicited fax advertisement, even if it was not received, violates the TCPA, granting and denying in part Plaintiff’s motion for summary judgment.
Plaintiff Scoma Chiropractic, P.A. (“Scoma”) brought suit against three companies, each specializing in spinal treatment, for four alleged violations of the TCPA resulting from faxes sent by the Defendants in 2020. It was undisputed that the faxes were “unsolicited advertisements.” Additionally, despite expert disagreements about relevant fax data, it was also undisputed that some of the faxes at issue were transmitted to Scoma from Defendants, but were not received by an “actual person” at Scoma.
Plaintiff sought summary judgment as to the alleged TCPA fax violations. Defendants argued that there was a genuine issue of material fact as to whether the disputed faxes were received by Scoma, and that because Scoma never received the fax, it did not suffer an injury sufficient to establish Article III standing.
While the Court noted that Defendant’s argument may seem intuitively appealing, it found that such an interpretation would be “contrary to the plain language of the TCPA.” The Court, noting that the standard for injury in fact for standing purposes is quite low, held that “a TCPA violation can occur even where the intended human recipient of the fax ... did not know that the fax was sent to him.” The Court clarified that “the statutory right conferred by the TCPA is violated upon the sending of the unsolicited fax.” (emphasis in original). Therefore, where Plaintiff showed that Defendants had sent an unsolicited fax, summary judgment was granted. Where questions of material fact existed regarding the accuracy of transmission logs, summary judgment was denied.
Scoma Chiropractic, P.A. v. Nat'l Spine & Pain Ctrs., LLC, 2023 WL 3390603 (M.D. Fla. May 11, 2023)
Illinois Appellate Court Finds Defendant Chiropractor Did Not Give Permission for Advertising Company to Send Unsolicited Faxes on Her Behalf, Affirms Summary Judgment
An Illinois appellate court recently affirmed a grant of summary judgment for a chiropractor who hired an advertising agency to send fax advertisements on her behalf. Defendant Geri Kruckenberg, a chiropractor, hired Business to Business Solutions (“B2B”) to send advertisement faxes on behalf of her and her business. B2B then sent unsolicited faxes to a number of people and entities, including the Plaintiff, who did not consent to receive them. However, Defendant argued that B2B, the source of a fair number of other TCPA litigations, had represented to Defendant through a disclaimer that it would send faxes only to people who had consented and wanted to receive them.
As Defendant herself did not send the faxes, Plaintiff relied on a theory of vicarious liability through B2B’s agency relationship with Defendant. On Defendant’s motion for summary judgment, the trial court found that the disclaimer provided to Defendant by B2B “clearly” provided that “unsolicited faxes [would] be sent only to those who have invited or permitted those faxes to be sent.” In ruling on Plaintiff’s theory of vicarious liability, the trial court held that B2B had exceeded its authority under the agency relationship because it had contractually agreed to only send faxes to recipients that wished to receive them. Therefore, the trial court concluded, the fax received by Plaintiff, which Plaintiff did not consent to, was not sent “on behalf” of Defendant, and was instead sent pursuant to an “independent decision” by B2B to send faxes to those who did not wish to receive them.
The Appellate Court agreed. The Court held that, reading the disclaimer as a whole, B2B clearly and intentionally gave the false impression that it had the consent of all fax recipients. The Court also concluded that Defendant had properly relied on B2B to advertise her services in compliance with federal law, and that B2B had engaged in a “fraudulent scheme” by sending faxes outside of the authority given by Defendant. In sum, the Court concluded that Defendant could not properly be considered the “sender” of the faxes at issue because they were sent outside the scope of the permission that Defendant had given B2B, and affirmed the grant of summary judgment for Defendant.
Quad Cities Indus. Maint. & Constr., Inc. v. Kruckenberg, 2023 WL 3319338, 2023 IL App (4th) 220536-U (Ill. App. Ct. May 9, 2023)
