The August issue of Kelley Drye’s TCPA Tracker newsletter is here:

Recent News

On August 6, 2021, the FCC adopted a Further Notice of Proposed Rulemaking to consider additional anti-robocall requirements for interconnected VoIP provider that seek direct access to telephone numbers. Among the changes, the FCC proposes to require interconnected VoIP provider seeking access to numbers to “certify that it will use numbering resources lawfully; will not encourage nor assist and facilitate illegal robocalls, illegal spoofing, or fraud; and will take reasonable steps to cease origination, termination, and/or transmission of illegal robocalls once discovered.” Comments on this proposal will be due 30 days after publication of the FNPRM in the Federal Register.

CGB Issues its Second Annual Report on the Status of the Implementation of Call Blocking Technologies

On June 29, 2021 the FCC’s Consumer and Government Affairs Bureau released a Second Call Blocking Report, as required by the 2019 Call Blocking Declaratory Ruling. This Report, a follow up to the June 2020 First Call Blocking Report, provides (1) a detailed description of call blocking services offered by voice service providers, third-party analytics companies, and device manufactures (2) an in-depth evaluation of the effectiveness of call blocking tools (3) information on the state of deployment of caller ID authentication through implementation of the STIR/SHAKEN framework and (4) an analysis of the impact of call blocking on 911 services and public safety.

FCC Adopts Rules to Create an Online Portal for Private Entities to Report Robocall Violations

On June 17, 2021 the FCC’s Enforcement Bureau released a Report and Order implementing section 10(a) of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), which directs the Commission to “prescribe regulations to establish a process that streamlines the ways in which a private entity may voluntarily share with the Commission information relating to violations of section 227(b) or 227(e) of the Communications Act.” The Report and Order establishes procedures for private entities may submit information about suspected robocall and spoofing violations. The rules do not supplement the complaint procedures available to consumers, and thus the portal is not open for consumer complaints of illegal robocalls. Similarly, government entity reports of robocall or spoofing violations should be submitted via other methods as well.

FCC Issues Further Notice of Proposed Rulemaking for Implementing STIR/SHAKEN

On May 20, 2021 the FCC’s Wireline Competition Bureau released a Third Further Notice of Proposed Rulemaking (FNPR) to consider accelerating its STIR/SHAKEN requirements for a subset of small voice service providers believed to be likely to originate illegal robocalls. In its Second Caller ID Authentication Report and Order, the FCC granted some small voice service providers an additional two years to implement the STIR/SHAKEN caller ID authentication framework. According to the FCC, a subset of these providers is originating an increasingly disproportionate amount of illegal robocalls. The NPRM outlines a proposal to “shorten the extension for small voice service providers most likely to originate illegal robocalls by one year, so that such providers must implement STIR/SHAKEN in the IP portions of their networks no later than June 30, 2022.” It also seeks comments on (1) “how best to identify and define the subset of small voice service providers that that are at a heightened risk of originating an especially large amount of illegal robocall traffic” and (2) “whether to adopt additional measures, including data submissions, to facilitate oversight to ensure that small voice service providers subject to a shortened extension implement STIR/SHAKEN in a timely manner.” Comments were due on or before July 9, 2021; reply Comments were due on or before August 9, 2021.

ZipDX Submits Letter of Intent to Serve as Registered Industry Consortium

As required by the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), the FCC must annually select “a single consortium to conduct private-led efforts to trace back the origin of suspected unlawful robocalls.” On May 27, 2021 ZipDx LLC (ZipDX) submitted a Letter of Intent to apply for this role. The Enforcement Bureau released a Public Notice on June 17, 2021 seeking comments on the matter. The current designated registered consortium, USTelecom – the Boadband Association’s Industry Traceback Group (USTelecom ITG) was not required to file another Letter of Intent, as its initial application and certifications continue for the duration of subsequent years, however it did submit a Comment reaffirming its commitment to the role. The Bureau will select the registered consortium by August 25, 2021. Comments were due July 2, 2021.

FCC Petitions Tracker

Number of Petitions Pending

• 30 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

• Enterprise Communications Advocacy Coalition – Petition for Declaratory Ruling

On July 30, 2021, the Enterprise Communications Advocacy Coalition (ECAC) filed a Petition for Declaratory Ruling seeking federal preemption of portions of recently enacted Florida legislation (SB 1120), which amends the Florida Do Not Call Act and the Florida Telemarketing Act. The ECAC contends that portions of SB 1120 imposes obligations more restrictive than the TCPA Regulations and impose additional prohibitions on calls and the use of dialing equipment that are legal under federal law. The Petition relies upon a 2003 Commission TCPA order which states that “that any state regulation of interstate telemarketing calls that differs from our rules almost certainly would conflict with and frustrate the federal scheme and almost certainly would be preempted.”

• Perdue for Senate, Inc. – Petition for Declaratory Ruling

On July 2, 2021 Purdue for Senate, Inc. (Purdue for Senate) filed a Petition for Declaratory Ruling, asking the FCC to confirm that the Telephone Consumer Protection Act (TCPA) does not regulate ringless voicemail technology (RVM). Specifically, Purdue for Senate wants the FCC to rule that “the delivery of a voice message directly to a voicemail box through RVM technology does not constitute a ‘call’ subject to prohibitions on the use of an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice under Section 227(b)(1)(A)(iii) of the TCPA or Section 64.1200(a)(1)(iii) of the FCC’s rules.” In the lead up to the January 2021 Senate runoff elections in Georgia, Purdue for Senate employed vendors that used RVM technology to deliver voice messages directly to potential voters’ voice mailboxes. According to Purdue for Senate, these RVM transmissions fall outside of the scope of the TCPA and other FCC rules because, not only are they not “calls,” they are also not transmitted via a wireless network, and the technology does not bill the recipients of the messages. Purdue for Senate claims that RVM technology is a “beneficial alternative” to robocalls, in that it allows non-profit organizations to relay important information without disrupting the lives of message recipients and/or adding charges to their bills.

This is the third petition to be presented to the FCC involving ringless voicemail technology. Two prior petitions relating to ringless voicemail were filed and subsequently withdrawn by the petitioners prior to a Commission decision.

• None

• None

Cases of Note

The District of Arizona has held that common ownership of an agent and principal may not be enough to establish an agency relationship nor, therefore, vicarious TCPA liability. Rather, the plaintiff must plead specific facts showing that the purported agent controlled or directed the calls that plaintiff alleges violated the TCPA. It further held that an offer to purchase property—rather than an offer to sell a product or services—does not qualify as a “telephone solicitation” under § 227(c) of the TCPA.

In Jance v. Homerun Offer LLC, Plaintiff filed suit against Homerun Offer alleging that he received 29 calls from the company making “a generic and cursory inquiry” into purchasing his house in violation of the TCPA. After conducting his own online research into the state corporate records, he learned of a second company, All Star Investments, owned by Homerun Offer’s registered agent, President, and CEO, that had made six property purchases between October 2019 and June 2020. Plaintiff hypothesized that the property purchases made by All Star Investments came about as Homerun Offer’s telemarketing efforts, and named both in his TCPA complaint.

All Star Investments moved to dismiss, arguing that Plaintiff failed to plausibly allege that it could be held vicariously liable for Homerun Offer’s calls. Defendants also both moved to dismiss Plaintiff’s § 227(c) claim prohibiting continued “telephone solicitation” after an individual requests to be put on a company’s internal do-not-call list, arguing that the calls fell outside the statutory definition of “telephone solicitation.” As to both, the Court agreed.

The Court held that Plaintiff failed to make a prima facie showing that All Star Investments had the right to substantially control Homerun Offer, and that Homerun Offer acted as All Star Investments’ agent. “The simple fact that the same individual . . . is the President and CEO of both [Defendants] as well as the parent company for both the agent and principle” was “[in]sufficient to show that All Star Investments controlled or directed Homerun Offer’s phone calls to Plaintiff.” With no agency relationship plausibly alleged in the complaint, the Court dismissed the claims against All Star Investment.

Separately, the Court dismissed Plaintiff’s claim for damages under § 227(c) of the TCPA, which prohibits an entity from continuing to initiate “telephone solicitation” after an individual requests to be put on a do-not-call list. Referencing the statutory definitions of “telephone solicitation” and “telemarketing,” the Court noted that the TCPA protects individuals from calls placed with the “purpose of encouraging the purchase of . . . property, goods, or services” by the recipient. Because the calls in question constituted an offer to purchase (rather than an offer to sell), the Court found the Complaint failed to state a claim under § 227(c) and dismissed those claims.

Not all Plaintiff’s claims were dismissed. His claims under § 227(b), which prohibits the use of an “automatic telephone dialing system” (ATDS) without the recipient’s consent survived. Noting that whether a defendant has used an ATDS is “often a fact exclusively within the defendants’ possession,” the Court found that Plaintiff’s allegations—that he had no business relationship with Defendants nor provided them with his contact information, that the caller’s numbers were attributed to a VoIP and had misleading caller ID information, that there was a brief pause before the caller began speaking on certain calls, and that the calls were generically formatted and scripted—were sufficient to plausibly allege use of an ATDS.

Jance v. Homerun Offer LLC, No. CV-20-00482-TUC-JGZ, 2021 WL 3270318 (D. Ariz. July 30, 2021)

Court Rejects Plaintiff’s Argument to Expand ATDS Definition Based on Duguid Footnote

In Hufnus v. DoNotPay, Inc., the Northern District of California granted Defendant company’s motion to dismiss after Plaintiff alleged that he had been contacted in a manner that violated the TCPA. In the June 24, 2021 order, the court found that Plaintiff’s interpretation of footnote 7 of Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021) conflicted with Duguid’s “holding and rationale,” since Defendant in this case did not “dial random or sequential blocks of telephone numbers,” but instead used numbers provided by consumers during the registration process.

The dialing system that Defendant “used to contact [Plaintiff] merely processe[d] phone numbers supplied by consumers while signing up for [Defendant’s] services.” Plaintiff’s complaint alleged that Defendant’s dialing system stored the telephone numbers “in a random and/or sequential way; uses a random and/or sequential generator to pull from the list of numbers to send targeted text messages; and uses a random and/or sequential generator to determine the sequence in which to send messages.” Specifically, Plaintiff relied on footnote 7 in Duguid, which states that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time.” Plaintiff argued that footnote 7 expanded the definition of an ATDS to include Defendant’s dialing system.

The court disagreed, stating “the [Supreme] Court employed the quoted line to explain how an autodialer might both ‘store’ and ‘produce’ randomly or sequentially generated phone numbers[.]” The court looked to the amicus curiae brief cited in footnote 7, which “makes clear that the ‘preproduced list’ of phone numbers referenced in the footnote was itself created through a random or sequential number generator.” The list of numbers used by the Defendant however, were “obtained in a non-random way (specifically, from consumers who provide them).”

Thus, because the platform solely used phone numbers that had been supplied by consumers, “and not phone numbers identified in a random or sequential fashion,” the court found that Defendant’s platform did “not qualify as an autodialer under the TCPA.” The court therefore dismissed Plaintiff’s complaint with prejudice.

Hufnus v. DoNotPay, Inc., No. 20-CV-08701-VC, 2021 WL 2585488 (N.D. Cal. June 24, 2021).

Court Finds Standing Sufficient But Dismisses TCPA Action For Insufficient Facts Alleged

In Camunas v. National Republican Senatorial Committee, the Eastern District of Pennsylvania dismissed a TCPA case for failure to adequately plead sufficient facts showing that an ATDS was used to send the text messages at issue.

Plaintiff alleged that he received “at least six messages” from a political organization, and that the messages were “generic and obviously pre-written.” The complaint further alleged that Defendant’s website “states that its opt-in messaging program communicates using ‘recurring autodialed marketing messages.’” Defendant moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that Plaintiff failed to plead an injury-in-fact, and for failure to state a claim.

Defendant challenged the Plaintiff’s standing to assert a claim based on a handful of text messages. In denying Defendant’s motion to dismiss for lack of subject matter jurisdiction, the court held that Plaintiff “plausibly alleges he suffered an injury” and “also plausibly alleges that the injury is fairly traceable to [Defendant’s] conduct and that a favorable judicial decision would redress the alleged injury.” On this point, Defendant argued against Plaintiff’s position that the six messages should be sufficient for the injury-in-fact standing requirement. Defendant sought “to distinguish [Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017)], from the instant action by arguing that Susinno ‘involved a phone call and a one-minute prerecorded voicemail – not a small number of text messages’ and still ‘required the plaintiff actually assert and plead an injury – such as nuisance and invasion privacy.’” The court found that in this case, Plaintiff had similarly alleged that “he found [Defendant’s] unsolicited communication ‘annoying, disruptive, frustrating and an invasion of his privacy.’” Thus, the court found that it had subject matter jurisdiction over the claim.

On the 12(b)(6) motion to dismiss for failure to state a claim, the court held that Plaintiff had not plausibly alleged that Defendant “used an ATDS to send the messages at issue.” The court found that the complaint had not identified what was contained in the text messages at issue, had not identified “the phone number from which the messages were sent,” and had failed to “indicate whether that number was a short code.” The court noted that “[i]n cases involving text messages,” courts “‘have considered the nature of the message, the length of the sending number, the number of messages, and the relationship between the parties.’” Specifically, the court pointed out that “several courts have concluded that a ‘short code’ number supports an inference of ATDS use.” As such, Plaintiff had had not alleged sufficient facts “to ‘nudge’ his claim ‘across the line from conceivable to plausible.’”

Ultimately, the court denied Defendant’s motion to dismiss for lack of subject matter jurisdiction, but granted the motion to dismiss for failure to state a claim, dismissing the complaint without prejudice.

Camunas v. National Republican Senatorial Committee, No. 21-1005, 2021 WL 2144671 (E.D. Pa. May 26, 2021).

Subscribe to the TCPA Tracker here.

* * *

The October issue of Kelley Drye’s TCPA Tracker newsletter is here:

Recent News

On October 1, 2020 the FCC released a Notice of Proposed Rulemaking (NPRM) to seek input on proposed rules to codify previous exemptions to the TCPA’s consent requirements. Section 227(b) of the TCPA prohibits “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party” unless the call meets the requirements of certain exemptions. The exemptions under review by the FCC include “(1) non-commercial calls to a residence; (2) commercial calls to a residence that do not constitute telemarketing; (3) tax-exempt nonprofit organization calls to a residence; (4) HIPAA-related calls to a residence; (5) package delivery-related calls to a wireless number; (6) financial-institution calls to a wireless number; (7) healthcare-related calls to a wireless number; (8) inmate calling service calls to a wireless number; and (9) cellular carrier calls to their own subscribers. Section 8 of the Pallone-Thune TRACED Act directed the FCC to examine these exemptions to ensure that they contain requirements addressing “(1) the classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of such calls that may be made to a particular called party.” To this end, the proposed measures include classifying parties as “informational callers” for callers only providing information, and “transactional callers” for callers trying to complete or confirm commercial transactions, in addition to limiting the number of calls that may be made during a period of time. Comments are due October 26, 2020, and reply comments are due November 3, 2020.

FCC Adopts New Rules to Combat Spoofed Robocalls

On October 1, 2020, the FCC released a Second Report and Order in its ongoing call authentication proceeding under the TRACED Act. In March, the FCC required originating and terminating voice service carriers to implement the STIR/SHAKEN call authentication framework in the IP portions of their networks by June 30, 2021. In the Second Report and Order, the FCC requires intermediate carriers also to implement the STIR/SHAKEN framework in their IP networks and to pass STIR/SHAKEN authentications to downstream carriers. The FCC extended the implementation deadline for small voice carriers (those with fewer than 100,000 subscriber lines) for two years, until June 30, 2023. Any carrier taking advantage of the extension must, however, implement a reasonable call mitigation program to reduce the origination of unlawful robocalls and must, by a date to be specified by the FCC, file a certification describing its call mitigation program. In addition, the Second Report and Order requires voice service carriers either to convert the non-IP portions of their networks to IP by June 30, 2021 or to be participating in industry efforts to develop and implement a call authentication framework for non-IP calls. Finally, implementing a requirement of the TRACED Act, the FCC prohibits voice service providers from imposing a line item fee on consumers to implement the STIR/SHAKEN framework.

FCC Proposes to Dismiss Old TCPA Preemption Petitions

On September 23, 2020 the Consumer and Governmental Affairs Bureau released a Public Notice, announcing plans to dismiss 10 pending petitions seeking preemption of state laws addressing unwanted robocalls and faxes. The petitions were filed between 2003 and 2005, and the relief requested may no longer be relevant due to regulatory changes that have occurred since their filing. The FCC will dismiss the petitions with prejudice unless petitioners file letters by November 20, 2020.

FCC Warns Robocall Scams May Undermine COVID-19 Contact Tracing Efforts

The FCC has warned consumers in the past against answering calls from unknown numbers in order to avoid falling victim to robocall scammers. During the September 25, 2020 Consumer Advisory Committee meeting, the CGB acknowledged that this advice may interfere with contact tracing efforts, as contact tracing calls will likely come from unknown numbers. Complicating matters, many recent scams explicitly refer to contact tracing in robocall messages. Some scammers even go so far as to spoof actual health department phone numbers. The FCC published an updated consumer guide and COVID-19 scam alert on their website to help consumers identify scams.

Anderson + Wanca File Application for Review of Ryerson Order

On October 5, 2020 Anderson + Wanca filed an Application for Review, asking the FCC to consider reversing the Ryerson Declaratory Ruling. According to Anderson + Wanca, “the Commission should reverse the Ryerson Bureau Order under Rule 1.115(b)(2) because its reasoning regarding ‘online fax services’ is in conflict with the statute, regulations, case precedent, and established Commission policy, and is based on erroneous factual findings.” More specifically, the Application questions whether the equipment referenced in the Ryerson decision as an online fax service has the requisite capacity to be a telephone fax machine. Anderson + Wanca also argue that the Amerifactors Declaratory Ruling, the decision cited as the primary reason for granting the Ryerson Petition, was based on a mistaken understanding of the TCPA guidelines and thus warrants Commission review.

FCC Petitions Tracker

Number of Petitions Pending

• 29 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

• None

• None

• None

Cases of Note

In Creasy v. Charter Commc’ns, Inc., the Eastern District of Louisiana found that the Supreme Court’s decision in Barr v. Am. Ass’n of Political Consultants (“Barr”) rendered the entirety of 227(b)(1)(A)(iii) unconstitutional during the period from Congress's 2015 addition of the unconstitutional government-owed debt exception until its July 6, 2020 severance from the TCPA. Thus, the Court ruled that it lacked subject matter jurisdiction to hear claims alleging violations of the TCPA’s ATDS prohibition during that window of time.

In Barr, the Supreme Court held that the 2015 amendment adding an exception to the TCPA’s ATDS provision for calls made in connection with a government-owed debt created an impermissible content-based speech restriction. As a remedy, the Supreme Court excised the government-owed debt exception and left the (other constitutional) remainder of the TCPA intact.

In Creasy, the plaintiffs alleged that the defendant made 130 autodialed calls and texts without the necessary consent. None of the calls involved a government-owed debt. One hundred twenty-nine of the 130 were made during the time that the government-owed debt exception to the TCPA was operative.

The defendant moved to dismiss all claims as to the 129 calls arguing that the Court lacked subject matter jurisdiction because courts lack authority to enforce violations of unconstitutional laws. The Eastern District of Louisiana dismissed the 129 calls finding that the unconstitutional exception rendered the entire statute unconstitutional during that time period. Because the Supreme Court found the exception unconstitutional, the Court determined that it lacked subject matter jurisdiction to apply the law to the defendant’s conduct.

With respect to the lone remaining communication, the defendant unsuccessfully sought dismissal and the case will proceed. The Court rejected arguments that the defendant could not be held responsible for calls placed by its subsidiary and found the plaintiffs had met the standard for stating a valid claim. Thus, the motion to dismiss was granted-in-part and the claims as to the one post-Barr call will continue.

Creasy v. Charter Commc'ns, Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020)

Court Dismisses Vague Text Claims For Lack Of Standing

In Clements v. Porch.com, Inc., the District of Alaska dismissed 17 plaintiffs’ TCPA claims based on a failure to allege proper standing. Plaintiffs alleged a total of 3,318 texts received, based solely on an approximation derived from multiplying the number of weeks during which each plaintiff received texts times an alleged average of 2 messages per week. The Court found that plaintiffs did not support those calculations with any specific allegations concerning specific text messages received by any specific plaintiff and produced only exemplar text messages. The Court found the Complaint lacked clear allegations that each plaintiff had received texts in violation of the statute. The Court further found that plaintiffs failed to properly allege which plaintiff(s) were pursuing Do Not Call claims under § 227(c)(5) since there were no allegations regarding any plaintiff’s number being listed on the National DO Not Call Registry. Thus, the Court held that plaintiffs’ assumptions were insufficient to establish an injury in fact and dismissed based on a lack of constitutional standing.

Clements v. Porch.com, Inc., No. 1:20-CV-00003-SLG, 2020 WL 5739591 (D. Alaska Sept. 24, 2020)

Court Dismisses Fraud Counterclaim Against TCPA Plaintiff

In Mey v. Castle Law Grp., the District of West Virginia granted plaintiff’s motion to dismiss fraud counterclaims against an alleged “serial” TCPA plaintiff because it found that the alleged basis for the counterclaim was actually behavior encouraged by the TCPA. Plaintiff’s complaint alleged that the defendants and/or their agents had called her using auto-dialers and pre-recorded messages selling debt relief services in violation of the TCPA. Four of the defendants counterclaimed for fraud asserting that the plaintiff voluntarily participated in a credit card qualification process in order to "trap the purported telemarketers into a lawsuit."

Plaintiff moved to dismiss arguing that her alleged conduct did not constitute fraud but was instead the type of investigation encouraged under the TCPA. The Court agreed. The Court relied heavily on a prior, similar District Court case holding that statutory damages in laws like the TCPA are “specifically designed to appeal to plaintiffs’ self-interest and direct that self-interest toward the public good” and “operate as bounties, increasing the incentives for private enforcement of the law.” Thus, the court dismissed the fraud counterclaim.

Mey v. Castle Law Grp., No. 5:19-CV-185, 2020 WL 5648326 (N.D.W. Va. Sept. 22, 2020)

Subscribe to the TCPA Tracker here.

VISIT THE ADVERTISING AND PRIVACY LAW RESOURCE CENTER ADVERTISING, PRIVACY AND CONSUMER PROTECTION ANSWERS. ALL IN ONE PLACE.

Future episodes of “Inside the TCPA” will tackle reassigned numbers, consent, and other topics raised before the FCC. This is a companion to Kelley Drye’s comprehensive list of petitions before the Commission available in our monthly TCPA Tracker newsletter. Please contact us if we can assist you with any of the FCC proceedings.

Kelley Drye’s Full Spectrum is available on iTunes. To subscribe, and keep up to date on the latest trends and topics in communications, simply find the built-in and undeletable podcast app, search “Kelley Drye Full Spectrum,” look for our logo, and hit “subscribe.”

You can also access the podcast through our website, SoundCloud, and Stitcher.

*Audio files may load faster through Google Chrome