TCPA Tracker - August 2019

Recent News

At its August 1, 2019, Open Meeting, the Commission adopted an order that implements two changes to the FCC’s Truth in Caller ID rules. The changes were required by amendments to the Communications Act, made by the RAY BAUM’S Act of 2018, which strengthened the FCC’s authority over spoofed calls. First, the order revises the Commission’s rules to prohibit persons or entities outside the United States—if the recipient is within the United States—from knowingly causing a caller ID service to transmit or display misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The existing rules only applied to persons and entities within the United States. Second, the order expands the scope of the communications covered by the rules beyond telecommunications services and interconnected VoIP services to any voice or text messaging service. The order also revises several definitions in the rules to make them more consistent with the statutory language. The new rules will allow law enforcement to seize the domestic assets of those making illegal spoofed calls from outside the United States and work with foreign governments to pursue international scammers.

Alarm Industry Communications Committee Seeks Reconsideration of Call Blocking Declaratory Ruling to Prevent Blocking of Alarm Calls

The Alarm Industry Communications Committee (“AICC”) filed a petition for clarification or for reconsideration of the FCC’s June 7, 2019 call blocking declaratory ruling concerning three issues. First, AICC asks the Commission to clarify that carriers must notify consumers of their inclusion in an opt-out call-blocking program both on a carrier’s website and via direct notification, such as texts, email, or inserts in customer bills. Second, AICC asks the FCC to clarify that calls from alarm companies are the types of emergency communications that carriers must avoid blocking. Third, AICC asks the FCC to clarify that carriers must implement any call-blocking programs in a non-discriminatory fashion with respect to alarm companies that are not affiliated with the carriers.

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

• 34 petitions pending
• 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

• Lori Wakefield – Petition for reconsideration of the Commission’s order granting a limited retroactive waiver of its prior-express-written-consent rule to ViSalus, Inc., claiming ViSalus acknowledged in a class action suit that it did not have evidence of consent and was not under any genuine confusion about the Commission’s rules. (filed July 15, 2019)

• Patrick Maupin – Seeks clarification that the purchase of an automobile from a car dealer does not automatically create an established business relationship between the automobile purchaser and a third party provider of a radio subscription service. (Reply comments due 8/13/19)
• Paul Armbruster – Petition for declaratory ruling or rulemaking finding that consumers have a right to revoke their consent for informational text messages where the business was not required to obtain prior express written consent. (Comments due 8/19/19; reply comments due 9/3/19)

• None since June 2019

Click here to see the full FCC Petitions Tracker.

Cases of Note

A Florida federal judge has sent a message to counsel for prospective TCPA plaintiffs to conduct an adequate pre-suit investigation and avoid excessive alternative pleading as a means to obtain admissions and premature ​“discovery.”  In Tormenia v. LVNV Funding, Inc., No. 8:18-CV-2347-T-23TGW, 2019 WL 3429591 (M.D. Fla. July 30, 2019), the plaintiff filed a complaint asserting, among other causes of action, violations of the TCPA.  The initial pleading was an ​“off-the-rack” complaint with generic, bare-bones allegations.  Then, the plaintiff moved to amend several times, changing both parties and the factual allegations along the way.

The plaintiff’s counsel coined their pleading style as ​“stepped” pleading—a phrase the court noted does not appear to be a term of art of any kind for federal pleadings.  The ​“stepped” pleading process entailed stating an extreme amount of alternative allegations in an effort to obtain admissions and, in effect, discovery through those admissions at the pleadings stage.  For example, the TCPA plaintiff alleged the defendant called a certain phone number 75 times, then 150 times, and so on in order to obtain admissions by the defendant as to the extent of the calls.  The pleading was extreme: the plaintiff included over twenty-five alternative allegations.

The court noted that the plaintiff’s counsel had repeated the same context-free, ​“stepped” allegations in numerous actions against several defendants, raising concerns that counsel had not conducted an adequate investigation before filing the numerous complaints and instead was simply relying on the ​“stepped” allegations to investigate the matters.  Such excessive alternative pleading strained the permissible limits of alternative pleading allowed by the Federal Rules of Civil Procedure and called into question counsel’s fulfillment of their duty to conduct an adequate pre-suit investigation.  The court emphasized that such ​“stepped” pleading ​“elongates severely the complaint and obfuscates the facts that support the plaintiff’s entitlement to relief,” a complaint is not a discovery tool, and such ​“stepped” pleading rarely, if ever, generated the ​“useful” admissions counsel suggested.

Ultimately, the court dismissed the complaint with prejudice due to a governing arbitration clause the plaintiff’s counsel had obfuscated from the pleadings, but the court stopped short of imposing monetary sanctions on the plaintiff’s counsel because it was satisfied a sufficient factual investigation had been conducted.  Still, the decision represents a warning to serial TCPA plaintiffs and their counsel to be wary of recycling nearly identical allegations across numerous allegations, employing excessive alternative pleading, and failing to conduct an adequate pre-suit investigation.

Court Strikes Allegations Proposing TCPA Revocation Class

An Illinois federal court has reinforced the unsuitability of proposed ​“revocation” TCPA classes.  In Tillman v. The Hertz Corporation, No. 16 C 4242, 2019 WL 3231377 (July 18, 2019), the plaintiff brought a putative TCPA class action after receiving calls from a car rental company seeking the overdue return of a vehicle rented by the plaintiff’s mother, who had provided the company with the phone number used by the plaintiff when renting the car.  The plaintiff proposed a putative class of those who requested that the defendant stop calling them but continued to receive calls from the defendant company in violation of the TCPA, and the defendant company moved to strike the class allegations.

Numerous allegations were contested, including what type of rental agreement the plaintiff’s mother signed when renting the car, whether the agreement contained language permitting the company to call any telephone number listed by the plaintiff’s mother, and whether the plaintiff ever requested the company stop calling the phone number at issue.  These numerous issues unique to the plaintiff alone rendered him both atypical and inadequate, defeating his bid to be a class representative.  Separately, and more broadly, the court emphasized why so-called revocation classes are generally ill-suited for class certification.  Because the proposed class required individual inquiries into whether each putative class member requested the defendant stop calling them—i.e., revoked consent—common questions of fact would not predominate over any questions affecting only individual members.

The decision is another example of how factual disputes can defeat class certification in TCPA litigation, especially those implicated by so-called ​“revocation” classes.