Texas District Court Joins the Third, Sixth, and Eleventh Circuit Courts of Appeal, Permitting a Private Right of Action for Violation of Section 64.1200(d)

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

The Northern District of Texas, in Powers v. One Technologies, LLC, joined its sister courts and the Third, Sixth, and Eleventh Circuit Courts of Appeal to hold that 47 C.F.R. § 64.1200(d), which prohibits certain telemarketing communications to “residential telephone subscriber[s]” without properly maintaining a list of persons on the national do-not-call list, provides a private right of action under the TCPA. 2022 WL 2992881, at *2 (N.D. Tex. July 28, 2022).

The plaintiffs sued under Section 64.1200(d), alleging that One Technologies violated the TCPA when the plaintiffs received unsolicited, unlawful text messages.  Specifically, they alleged that One Technologies did not have or maintain “a procedure for maintaining a do-not-call list.”

One Technologies argued inter alia that Section 64.1200(d) does not have a private right of action; that no violation occurred because One Technologies did not initiate the text messages at issue; and that the plaintiffs failed to allege that they are “residential subscribers” under that Section.  The court ruled that, while the plaintiffs did have a private right of action, they failed to plausibly allege One Technologies’ vicarious liability, and dismissed the TCPA count of the complaint without prejudice for that reason.

On the issue of private right of action, One Technologies argued that, because Section 64.1200(d) was promulgated under Section 227(d) of the TCPA, which contains no private right of action, the regulation does not therefore have a private right of action.  But at least two other courts in the Northern District of Texas had previously concluded that Section 64.1200(d) does permit a private right of action.  See Hunsinger v. Alpha Cash Buyers, LLC, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022); Cunningham v. Nationwide Security Solutions, Inc., 2017 WL 10486988, at *4 (N.D. Tex. Nov. 2, 2017).  Noting that the Fifth Circuit had not yet decided the issue, the court agreed with “[t]he Third, Sixth, and Eleventh Circuits [which] have found that [Section] 64.1200(d) was promulgated to protect privacy rights under [Section 227(c) of the TCPA] and thus [that] private right of action reaches violations of [Section] 64.1200(d).”

The court next rejected the argument that One Technologies was not liable because “One Technologies itself did not ‘initiate’ the text messages.”  The court explained that the Supreme Court has ruled that a company may be vicariously liable for violating the TCPA.  That said, the court found that the plaintiffs failed to identify One Technologies’ agents or “plead an agent-principal relationship.”  Thus, it dismissed the TCPA count without prejudice.

Though the court stated it need not reach the issue, given the above, it addressed One Technologies’ “argument that the regulation, [Section] 64.1200(d), applies only to ʻresidential subscribers’ and that the plaintiffs have not alleged that ‘primary cell phones’ fit the description of ‘residential.’”  The FCC, the court reasoned, has stated that the question of “whether a subscriber is ‘residential’ is fact-insensitive” and the FCC presumes that wireless subscribers who enroll on the do-not-call list are “residential.”

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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