December 2019 - Call Compliance News
Federal Communications Commission
The Federal Communications Commission (“FCC”) has ruled that the Telephone Consumer Protection Act (“TCPA”) does not apply to faxes sent via e-mail over the internet “rather than to an old-fashioned fax machine”.
Thus, faxes sent using an online fax service do not fit within the plain meaning of the TCPA’s prohibition on conventional faxes, nor do they result in the type of harm Congress sought to avoid in passing the TCPA. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 et al., CG Docket No. 02-278, Dec. 9, 2019.
Many TCPA class actions have turned on the disclosure language found in faxes. This ruling would eliminate those cases for plaintiffs who “received” those faxes on their computers rather than a classic fax machine.
This ruling has some relevance to other means of receipt of messages. For example, if a text is received on a computer, rather than a phone, the same analogy would apply, i.e. that sort of message does not cause the harm Congress intended to prevent in passing the TCPA.
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United States Supreme Court
The United States Supreme Court has refused to hear an appeal to a $61 million verdict against it in a TCPA case. Dish Network v. Krakauer. In the case below, Dish Network was found liable for the actions of its vendors because plaintiff proved it ignored “do-not-call” requests and other indications that the vendors were not compliant with the law.
A California court has confirmed an arbitration award in a TCPA case in the amount of $225,000 based on 226 calls in “knowing and willful” violation of the TCPA.
A Florida court has rejected a plaintiff’s attempt to increase the size of a potential TCPA class through aggressive discovery of the defendant. Grigorian v. Tixe Realty Services, Inc.
Comment: Complaints will often allege facts based “upon information and belief” and the plaintiff’s attorney is required to certify to the truthfulness of the allegations when he or she signs the document. The plaintiff’s attorney here argued he needed this discovery to determine the class size, but the judge rejected this argument noting the attorney already had certified he had this information. This ruling could be an important weapon against abusive and expansive discovery in other TCPA matters.
A Missouri court has ruled that the government debt collection exemption to the TCPA cell phone call ban is unconstitutional and severable from the rest of the statute. In Taylor v. KC VIN, LLC, plaintiff alleged texts she received from a pizza bar were violation to the TCPA. The bar and the bar’s landlord alleged the TCPA cell phone call ban was unconstitutional.
Comment: The court adopted rulings from the Ninth Circuit and Fourth Circuit and held that the government debt collection exemption was unconstitutional, but severable, and allowed the case to proceed.
A bill has been introduced in the Missouri Senate (SB 664) which would ban call spoofing, defined as failure to transmit the true telephone number and name of the telemarketer, seller, or charitable organization.
A federal court in Ohio has ruled that TCPA claims are subject to arbitration clauses. Pollak v. KeyBank N.A. Plaintiff had submitted a credit application and his cell phone number to the bank and sued after he was called at that number. The court ruled the arbitration agreement in the credit application applied to the claims.
A Washington court has rejected a proposed $18 million TCPA settlement against A Place for Mom. Pine v. A Place for Mom, Inc. The judge refused to certify an “opt in” system to distribute the settlement ($18 million) because it included persons who were called with consent (and therefore did not suffer a violation of the TCPA). Instead the court certified a class of people who were called without their consent on a cell phone.