December 2020 - Call Compliance News
United States Supreme Court
On December 8, the United States Supreme Court heard oral argument in the Facebook case involving the TCPA definition of “automatic telephone dialing system” (“ATDS”). Facebook v. Duguid. Duguid focused on the words “using a random or sequential number generator.”
Comment: The plaintiffs argued that those words have no meaning and that any system with the capacity to dial without human intervention is an ATDS regardless of random or sequential number generation. The defense argued that normal rules of statutory construction require that each word of the statute be given meaning, i.e. these words should not be read out of the statute. We can expect a ruling in the coming months.
Federal Communications Commission
Capital One has petitioned the Federal Communications Commission (“FCC”) for a declaratory ruling with regard to the scope of opt-out requests it receives from customers. The company asked what is the scope of an opt-out request received via text message in response to an informational text message that the recipient previously consented to receive—does it apply to informational texts only, all texts, debt collection texts, telephone calls, etc.?
Eleventh Circuit Court of Appeals
The Eleventh Circuit Court of Appeals has ruled that a single “ringless” voicemail received by a plaintiff did not give her standing such that she could sue on behalf of a class, of course, for violations of the TCPA. Grigorian v. FCA US, LLC. Defendant sent the plaintiff one “ringless” prerecorded voicemail advertising a Chrysler automobile for sale along with 89,000 other consumers. The court noted that a single text message does not create standing, and analogized that a single voicemail would not either.
This case does not mean that “ringless” voicemail is permitted under the TCPA, just that the receipt of one “ringless” voicemail does not cause sufficient damages that a person has standing under the Constitution to sue.
Fourth Circuit Court of Appeals
A federal appellate court in the Fourth Circuit has ruled that FCC interpretations of the TCPA are not binding, nor are they entitled to deference by the courts. That is, if a court disagrees with the FCC on an issue of interpretation, it does not have to follow it or give the FCC interpretation any weight. Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC.
Comment: The plaintiffs’ attorneys have hung their hat on many FCC rulings especially interpreting the term “automatic telephone dialing system”. Although this case involved whether a fax contained an “unsolicited advertisement”, this ruling will be important for many other TCPA defendants.
The Michigan House has passed a breach notification law (HB 4187) requiring entities with 50 or more employees which own or license sensitive personally identifying information to notify effected persons in the event of a breach of security with regard to that data. The bill will now proceed to the Senate where it is likely to pass.
Comment: Most states have data breach notification laws. Please notify me if you would like a report on these statutes with details on how to comply.
A Nevada court has dismissed a TCPA claim brought against a calling platform and a lead company who sold services to a realtor who called plaintiff. Paul D.S. Edwards v. Juan Martinez, Inc. et al. The court noted the plain language of the statute assigns liability “to the party who ‘makes’ the call”. The judge noted that the dialer and the lead company did not exercise control over the realtor, thus that the carrier would not vicariously be liable for his calls. Further, the plaintiff did not allege the carriers placed calls on behalf of the other entity or that they had any right to control the realtor’s actions. Thus, those entities were not vicariously liable for the realtor’s actions.