March 2019

Recent News

None

 

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

  • 31 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)

New Petitions Filed
  • Akin Gump Strauss Hauer & Feld LLP – seeking a declaratory ruling that a fax broadcaster is the sole liable “sender,” when it both commits TCPA violations and engages in deception or fraud against the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser cannot control the fax campaign or prevent TCPA
    violations (Filed 2/26/19)

Upcoming Comments
  • NorthStar Alarm Services, LLC. – seeking a declaratory ruling that the use of soundboard technology, which allows a live operator to select one or more recorded message “snippets” during live calls with recipients, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA
    (Reply Comments due 3/29/19)
  • Akin Gump Strauss Hauer & Feld LLP – seeking a declaratory ruling that a fax broadcaster is the sole liable “sender,” when it both commits TCPA violations and engages in deception or fraud against the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser cannot control the fax campaign or prevent TCPA violations
    (Comments due 4/8/19;
    Reply Comments due 4/23/19)

Decisions Released
  • None since January 2019 report


Click here to see the full FCC Petitions Tracker.
 

Cases of Note

Defendant in Class Action Settles Case after Filing a Petition for Writ of Certiorari

The defendant in a TCPA class action has settled the case after filing a petition for a writ of certiorari with the Supreme Court.  Crunch San Diego, LLC v. Marks, No. 18-995.  The defendant-petitioner, Crunch San Diego, had used a web-based system to send promotional text messages to a list of stored telephone numbers at a time selected by the gym.  It is undisputed that the system did not use a random or sequential number generator.  The District Court for the Southern District of California granted summary judgment in favor of Crunch.  The 9th Circuit reversed, ruling that an ATDS includes devices with the capacity to automatically dial stored telephone numbers, whether or not a random or sequential number generator was used.

Crunch had argued that the Court should grant the petition because (1) the TCPA’s plain text requires that an ATDS use a random or sequential number generator, (2) Congress’s purpose in enacting the TCPA was to restrict telemarketing that used an ATDS, and (3) the 9th Circuit knowingly created a circuit split with the Third Circuit, which held that an ATDS requires the use of a random or sequential number generator.

Crunch filed its petition on January 28, 2019.  On February 15, Plaintiff-respondent Marks was granted an extension of time to file a response to April 1.  On February 20, the Southern District of California granted the parties’ joint motion to dismiss because the case settled (No. 14-cv-348-BAS-BLM).  Accordingly, the parties filed an agreement to dismiss the case with the Supreme Court on February 21.  Consequently, the 9th Circuit’s decision and definition of an ATDS remains.

Pennsylvania District Court Dismisses TCPA Class Action Finding that Fax Is Not An Advertisement

In a recent decision, Judge Chad F. Kenney of the Eastern District of Pennsylvania dismissed a TCPA putative class action finding that the fax at issue was not an unsolicited advertisement on its face, as well as a pendant state claim for conversion of plaintiff’s fax machine.  Mauthe v. Spreemo, Inc., et al., No. 18-1902-CFK, slip op. (E.D. Pa. Jan 28, 2019).  Plaintiff Robert W. Maude, M.D., P.C., filed suit against Defendants Spreemo, Inc. and the Hartford Financial Services Group, alleging that defendants sent unsolicited faxes to him and a purported class of similarly-situated persons.  At issue in the lawsuit was a single one-page fax sent in December 2016 which stated that defendant Spreemo was the “Primary Diagnostic Vendor” for Hartford.   Plaintiff contended that the advertisement promoted “the availability and quality of Spreemo’s services,” a contention that defendants refuted.  

Finding that on its face the fax in question did not promote any goods or services, the Court careful reviewed the fax to determine whether it contained a “pretext for a larger advertising scheme” which would violate the TCPA.  The Court cited plaintiff’s own argument to demonstrate that the purpose of the fax was to inform its intended recipients, such as medical providers like plaintiff, that Spreemo is the primary diagnostic provider for any patients covered by Hartford insurance policies.  The fax communicated that patients covered by Hartford insurance policies should submit requests for any diagnostic tests to Spreemo.  The Court also looked beyond the language actually included in the fax to examine what language was not included in the fax, namely information on comparative pricing for services, information “touting” the quality of services, or information describing the ease of making an appointment or arrangements for services offered by Spreemo.  The Court stated that the inclusion of such additional information “would take the fax beyond the realm of advertisement.”  Holding that the fax was not an unsolicited advertisement on its face and did not contain and pretext for a larger advertising scheme, the Court determined that the fax was informational and therefore did not violate the TCPA, and dismissed plaintiff’s claims. 

Plaintiff Appeals District Court Order Based on Ninth Circuit Decision in Marks v. Crunch

Following the Ninth Circuit’s decision in Marks v. Crunch, 904 F.3d 1041 (9th Cir. 2018), the Plaintiff appealed the Arizona District Court’s Order granting summary judgment to defendant GoDaddy in his putative TCPA class action.  Herrick v. GoDaddy.com LLC, No. 18-16048 (9 Cir.), Dist. Court Civ. Case No. 16-cv-254-DJH.  The Plaintiff brought a putative class action against defendant GoDaddy alleging that the company used third party provider 3Seventy to send SMS text messages to over 100,000 persons, and that the platform sent and delivered text messages without human involvement, which plaintiff alleges constitutes an ATDS.   In deciding GoDaddy’s motion for summary judgment, the Arizona District Court found that the platform used by 3Seventy was not an ATDS because the platform could “not randomly or sequentially generate [the targeted] numbers by itself.”  Alternatively, the District Court found that the human intervention involved in uploading the list of numbers to the 3Seventy platform and in authorizing the system to send the texts was sufficient to find that the system did not constitute an ATDS.  

In his appeal, the Plaintiff argues that the Arizona District Court’s ruling is contrary to the Ninth Circuit’s recent decision in Marks v. Crunch, and compels reversal of the District Court’s Order.  Specifically, the Plaintiff argues that the Ninth Circuit rejected the “argument that a device cannot qualify as an ATDS unless it is fully automatic, meaning that it must operate without any human intervention whatsoever.”  Marks, 904 F.3d at 1052-52.  The Plaintiff also argues that the actual dialing of numbers by the 3Seventy platform was completely automated and required no human intervention, thus constituting an ATDS.  The Plaintiff urges the Ninth Circuit to look to its own precedent in determining what constitutes and ATDS and overturn the District Court’s decision.