June 24, 2020

COVID-19 Related Communications

With COVID-19, many time-sensitive communications will need to be sent. A reminder that the TCPA has an exception to consent for “emergency” communications made necessary for any situation affecting the health and safety of consumers. In March, the FCC clarified that coronavirus-related informational communications from hospitals, governments and certain other speakers qualify as emergency communications.  Financial institutions filed a similar request relating to banking-related communications during the pandemic, which remains pending.  If you have questions about whether the emergency exception applies to communications your business wants to send, we’re ready to help.

 

Recent News

FCC Seeks Further Comment on TRACED Act’s Traceback Consortium’s Role

On March 27, 2020, the FCC adopted rules establishing a robocall traceback consortium designation process, as required under Section 13(d) of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The March 27, 2020 release included a Further Notice of Proposed Rulemaking (FNPRM) that, among other things, seeks comment on what actions the registered consortium should take if it “identifies a provider of voice service subject to a delay of compliance with the STIR/SHAKEN implementation mandate as repeatedly originating large-scale unlawful robocall campaigns.” The FNPRM was published in the Federal Register on June 10, 2020. Comments are due on July 10, 2020 and reply comments are due on July 27, 2020.
 

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

  • 35 petitions pending
  • 1 petition for review of the CGB order issued on 12/09/19 granting Amerifactors’ petition for declaratory ruling that faxes sent and received over the Internet are not bound by the prohibitions on junk faxes that apply to telephone facsimile machines
  • 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

New Petitions Filed
  • Assurance IQ, LLC – Petition for expedited declaratory ruling seeking a ruling from the Commission that (1) if a caller has “reasonable basis to believe that they have valid consent to make the call,”, that caller may rely on such consent for TCPA purposes until the called party claims otherwise and (2) that a “prerecorded introductory message on an otherwise live call,” does not constitute a prerecorded or artificial call within the scope of the TCPA.
    (Comments due 06/22/20, reply comments due 07/06/20)

Upcoming Comments
  • Assurance IQ, LLC – Petition for expedited declaratory ruling seeking a ruling from the Commission that (1) if a caller has “reasonable basis to believe that they have valid consent to make the call,”, that caller may rely on such consent for TCPA purposes until the called party claims otherwise and (2) that a “prerecorded introductory message on an otherwise live call,” does not constitute a prerecorded or artificial call within the scope of the TCPA.
    (Comments due 06/22/20, reply comments due 07/06/20

Decisions Released
  • None since March 2020.
Click here to see the full FCC Petitions Tracker.

 

Cases of Note

9th Circuit Holds Consent from Intended Recipient Insufficient Where Number Has Been Reassigned
 

In N.L. v. Credit One Bank, N.A., the Ninth Circuit affirmed that a jury was properly instructed that consent from the intended recipient of a call did not qualify to justify a call to the actual recipient under the TCPA.  Following the instruction given, the defendant was found liable for debt-collection calls it made using an ATDS to a number formerly belonging to the defendant’s consenting customer.  The number had been reassigned to the plaintiff, an 11-year old boy.
 
The defendant argued that the jury should have been instructed that it had no liability if it had a “good faith basis” to believe it had consent to call Plaintiff’s number, or that it reasonably relied on the former owner’s prior express consent.  That instruction relied on an interpretation of “called party” in the TCPA to mean “intended recipient.”  The Ninth Circuit held that the statutory text of the TCPA belies such an interpretation.  That interpretation is consistent with decisions from both the Seventh and Eleventh Circuits.  Currently, all Circuits to have considered this question are in agreement that prior express consent from the intended recipient will not shield a defendant from liability under the TCPA where the actual recipient – the “called party” – did not consent.
 
N.L. by Lemos v. Credit One Bank, N.A., Nos. 19-15399, 19-15938, 2020 WL 2950074 (9th Cir. 2020)
 
 

Western District of Texas Defines ATDS Narrowly
 

In the absence of binding precedent from the Fifth Circuit, the Western District of Texas has sided with the Third, Seventh, and Eleventh Circuits on a narrower definition of an ATDS.  In Suttles v. Facebook, Inc., the court held that a device must be capable of randomly or sequentially generating numbers to  qualify as an ATDS.  In light of that definition, the court dismissed Suttles’s claim against Facebook for failure to allege sufficient facts to make a plausible inference that Facebook used an ATDS.
 
Plaintiff brought his putative class action on the basis of 32 unsolicited text messages allegedly sent by Facebook from short-code numbers, which encouraged him personally to log onto facebook.com or provided verification codes addressed to one of three other unknown third parties named “Hannah,” “Abel,” and “Sandra.”  The court found that these allegations alone did not indicate that Facebook used an ATDS: in fact, Plaintiff’s allegation that the messages directly targeted specific individuals weighed against an inference that Defendant used technology that randomly or sequentially generated numbers.  The court, therefore, dismissed the claim against defendant with prejudice.
 
Suttles v. Facebook, Inc., No. 1:18-cv-1004-LY, 2020 WL 2763383 (W.D. Tex. May 20, 2020).
 
 

Fax Advertising a Free Webinar Not an “Advertisement” Within the Meaning of the TCPA
 

In Mauthe v. Millennium Health LLC, the Eastern District of Pennsylvania dismissed a putative class action based on a faxed invitation to a free informational webinar.  The Court held that informational faxes do not qualify as an unsolicited advertisement under the TCPA, and therefore plaintiff’s claim failed.
 
Defendant operates a laboratory that provides medication monitoring and drug-testing services to clinicians and healthcare professionals; plaintiff was a client of the defendant.  As part of a promotion for an upcoming webinar concerning opioid treatment and misuse, Defendant faxed a flier to Plaintiff, which contained the details for the webinar.
 
According to the Court, under the TCPA, a fax constitutes an advertisement where it “advertis[es] the commercial availability or quality of any property, goods, or services.”  Because the fax in question only facially advertised a free webinar, the court held that it was not commercial in nature: it neither promoted goods or services to be bought or sold nor had profit as an aim.  Despite this, Plaintiff argued that the court should apply the FCC’s “pretext analysis” to find that the fax in fact served as pretext to advertise commercial products and services (defendant’s urinalysis services), despite only advertising a free webinar on its face. The Court held that it was not bound by the FCC’s order because the order was an “interpretive” rule only and the term “unsolicited advertisement” was sufficiently clear that it could determine what qualified and what did not without the FCC’s interpretive assistance.  The court, as a result, determined that the fax was not prohibited by the TCPA and dismissed the claim.
 
Robert W. Mauthe, M.D., P.C. v. Millennium Health LLC, No. 18-1903, 2020 WL 2793954 (E.D. Penn. May 29, 2020)