TCPA Tracker - January 2018

Recent News

The FCC is seeking public comment on a Further Notice of Proposed Rulemaking that addresses methods to make sure that the robocall blocking practices recently sanctioned by the FCC do not impact lawful calling practices.  Initial comments in response to the FNPRM are due on January 23, 2018 and reply comments are due on February 22, 2018.

Specifically, the FCC seeks comment on whether to make a challenge process mandatory and, if so, how it should work.  Thus the next phase of this issue will shift to instances of erroneous blocking, and how callers may address those concerns.  Additionally, the FNPRM explores the ways that the FCC can measure the effectiveness of its robocalling efforts as well as those adopted by industry.  The FCC asks whether it should adopt a requirement for carriers to report the number of blocked calls, and/or to rely on data received through consumer complaints as the benchmark for effectiveness.  Commissioner Clyburn noted this provision in her comments during the meeting, and suggested that these changes were adopted at her request.  One can expect that Commissioner Clyburn will monitor comments on this issue closely.

FCC and Waiver Recipients File Oppositions to Request for Supreme Court Review of Junk Fax Decision

Earlier in January, the FCC and a group of private entities that had been recipients of waivers of the FCC’s opt-out notice requirement for solicited fax advertisements filed separate briefs opposing a request for review by the U.S. Supreme Court of the D.C. Circuit’s decision to invalidate the solicited fax advertisement rule.  Among other arguments, both briefs asserted that the Supreme Court should not review the circuit court’s decision because it properly applied the Chevron ​“step one” test – namely, that the FCC exceeded its statutory authority under the TCPA when it attempted to regulate solicited faxes.  The FCC and private entities also argued that even if the consumer plaintiffs prevailed on the merits of their argument, the practical effect of such a decision would be minimal because the FCC had already granted retroactive waivers of the rule to the private entity petitioners.

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

• 23 (+9 seeking a retroactive waiver of the opt-out requirement for fax ads)
• 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”
• 3 requests for reconsideration of the 11/2/16 fax waiver in response to petitions by 22 parties
• 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners

New Petitions Filed

• None

Upcoming Comments

• None

Decisions Released

• None

Click here to see the full FCC Petitions Tracker.

Cases of Note

The Second Circuit recently upheld a lower court’s decision that a medical provider was not in violation of the TCPA for sending a patient a single text message reminding him to get a flu shot.  On January 3, 2018, the Second Circuit denied plaintiff Daniel Latner’s appeal of the Southern District of New York’s order granting summary judgment for defendants Mount Sinai Health System and its affiliate, West Park Medical System, P.C., after West Park used a third party to send Latner a single text message reminding him to schedule an appointment for a flu shot in Latner v. Mount Sinai Health Systems. 
Plaintiff Latner brought a class action against Mount Sinai and West Park for TCPA violations based on a single text message sent at the direction of the defendants on September 19, 2014, and defendants filed a motion for summary judgment on the pleadings.  In granting defendants’ motion, the Southern District of New York held that the text message sent to Latner to schedule a vaccination appointment qualified as a ​“Healthcare Exception” to the TCPA, pursuant to the FCC’s 2012 Telemarketing Order, and determined that the text message in question was a ​“health care message” delivered by or on behalf of a ​“covered entity” or its ​“business associate.”      
In upholding the lower court’s decision, the Second Circuit noted that the district court’s analysis was incomplete, however, as the court did not address whether or not Latner had, in fact, provided his consent to be contacted by defendants.  As explained by the Second Circuit, the FCC’s 2012 Healthcare Exception relied upon by the district court only provided a basis for an exemption to the requirement that a health care provider or its affiliates obtain prior written consent for autodialed or prerecorded telemarketing calls; it did not provide an exemption to obtaining the patient’s prior consent before contacting the patient using that personal information.  The Second Circuit cited to the FCC’s 2015 Order, which clarified that healthcare providers are still subject to the TCPA’s general consent requirement.
The Second Circuit examined new patient forms completed by Latner, including various privacy notices, when he first visited the West Park medical facility as a new patient in 2003.  The Court found that Latner provided his cell phone number, and consented to West Park and Mount Sinai sharing his information for ​‘treatment” purposes, and consented to the medical providers using his information to recommend ​“possible treatment alternatives or health-related benefits and services.”  Because Latner provided his prior express consent to receiving information from defendants about ​“health-related benefits” that might be of interest to him, the Second Circuit held that Mount Sinai and West Park had not violated the TCPA by sending the vaccination reminder and affirmed the judgment of the district court.

District of Maryland Declines to Adopt Reyes Court’s Prohibition on Revocation of Consent in Debtor-Creditor Context

The District Court of Maryland recently declined to adopt the Second Circuit’s holding in Reyes v. Lincoln Automotive Financial Services, which limited the ability of a debtor to revoke consent to be contacted by the creditor in connection with a loan agreement as consent was part of the bargained-for-exchange.  In Ginwright v. Exeter Fin. Corp., plaintiff Billy Ginwright brought a claim action against Exeter Finance Corporation, an automobile finance company, under both the TCPA and the Maryland Telephone Consumer Protection Act (“MTCPA”) for calls made by Exeter in connection with Ginwright’s overdue payments on his automobile loan.  In the course of purchasing a vehicle from non-party Baltimore Washington Auto Outlet, Ginwright sought a loan and completed and signed two agreements – a Credit Application, which contained a provision under which Ginwright consented to be contacted via automatic dialing equipment in connection with servicing of his account and which authorized the dealership to solicit outside financial institutions to extend Ginwright credit to purchase the vehicle, as well as a Retail Installment Sale Contract with the dealership, which specifically stated that it comprised the entire agreement with respect to the purchase of the vehicle without referencing or attaching the Credit Application.  The dealership assigned the Retail Installment Sale Contract to Exeter, which was not a party to either agreement.  Exeter made over 1800 calls to Ginwright regarding overdue payments on his auto loan during a two year period.  While Ginwright confirmed his cell phone number during some of the calls at issue, he contends that he revoked consent to be called up to five different times, but that Exeter continued to call despite his requests.  
The Maryland district court found that under the FCC 2008 Ruling, Ginwright had, in fact, provided consent to receive autodialed calls in connection with the auto loan when he provided his cell phone number during the transaction that resulted in the debt.  Furthermore, the court held that Ginwright did not need to provide this consent directly to Exeter – under the FCC’s 2014 Ruling, providing his number to an intermediary, here the Baltimore Washington Auto Outlet, was sufficient.   However, the Maryland district court declined to extend the holding of the Second Circuit in Reyes that once that consent was given, it could not be revoked as part of a bargained for exchange, as it found that Exeter was not a signatory to the Credit Application, and that the Retail Installment Sales Contract did not reference or include the terms of the Credit Application.  The court determined that the Credit Application was not a part of Ginwright’s contractual agreement with Exeter.  The district court also indicated, however, that it had reservations about applying Reyes even where both parties were signatories to a loan agreement, stating, ​“Such a prohibition on later revocation of consent arising from a boilerplate consent provision, however, would be inconsistent with the FCC’s ruling that a consumer has a right to consent.”  The district court did not determine whether revocation had occurred in this instance, instead holding that a genuine dispute of material fact existed, and denying Exeter’s motion for summary judgment. 
The Maryland district court also denied plaintiff’s motion for class certification.  Plaintiff Ginwright sought to certify a class of persons within the United States who received a non-emergency call from defendant Exeter on their cellular phone through the use of an automatic telephone dialing system within the relevant time period.  The court found that the proposed class was ascertainable, and met the requirements of numerosity and adequacy, given Exeter’s large customer base and the call records maintained by Exeter.  The court found that Ginwright was similarly situated to other putative class members, satisfying the typicality requirement.  However, the court found that Ginwright could not satisfy the commonality requirement, as Exeter used different calling systems to contact its customers during the relevant period.  Furthermore, the court found that there were individualized issues as to whether the putative class members gave consent to receive calls from Exeter through an ATDS, whether putative class members revoked that consent, and whether Exeter complied with its customers’ instructions.  Given the lack of commonality, the court held that Ginwright could not demonstrate that class-wide issues predominated over individual issues, and held that the class could not be maintained under any other prong of Rule 23(b).

Awards and Accolades

Kelley Drye has been named a 2017 Law360 ​“Consumer Protection Practice Group of the Year,” an honor that recognizes the firm’s market-leading Advertising Law and Consumer Class Action Groups and noteworthy consumer protection victories. Law360​’s annual ​“Practice Group of the Year” Awards honor the law firms behind landmark matters that resonated throughout the legal industry over the past year.

View Article