TCPA Tracker - August 2020

Recent News

Comment Cycle Begins for Call Blocking Item Adopted During FCC’s July Open Meeting

During its July 16 Open Meeting, the FCC adopted a Third Report and Order, Order on Reconsideration, and Fourth Further Notice of Proposed Rulemaking (FCC 20-96) concerning call blocking (see our coverage of the item in the July 2020 TCPA Tracker). The item’s Fourth Further Notice of Proposed Rulemaking was published in the Federal Register on July 31, 2020, beginning the comment cycle. Comments are due on August 31, 2020 and reply comments are due September 29, 2020.

Oral Arguments Scheduled in Remanded Junk Fax Case
The 4th U.S. Circuit Court of Appeals has scheduled argument for September 10th in the U.S. Supreme Court remand of PDR Network v. Harris Chiropractic. On June 20, 2019, the Supreme Court issued its decision, remanding for the 4th Circuit to address: (1) whether the 2006 Order is a legislative rule” or an interpretive rule,” and (2) whether PDR had a prior and adequate opportunity” to seek judicial review of the 2006 Order under a Hobbs Act petition.

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

  • 32 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
  • None

Upcoming Comments
  • None

Decisions Released
  • Petition for Review of CGB Decision on the P2P Alliance Petition
  • On July 24, 2020, the National Consumer Law Center and several other groups filed an Application for Review asking the Commission to reverse or vacate and remand the June 25, 2020 Consumer and Governmental Affairs Bureau (CGB) decision on a petition filed by the P2P Alliance (see our coverage of the decision here).
  • The groups argue that the CGB’s ruling characterizes the statutory definition of an automated telephone dialing system (ATDS) in ways that deviate from the statutory language, and conflict with each other, with the Commission’s rulings, and with prevailing case law.” Specifically, they allege the language in the ruling potentially excludes predictive dialers from being considered an ATDS if they are dialing numbers from a stored list not randomly or sequentially generated. The groups point to the active controversy over the definition of an ATDS, both before the Commission in the remand proceedings following the D.C. Circuit’s decision in ACA International and before the United States Supreme Court following their grant of certiorari in Facebook v. Duguid, in support of their argument that the Commission should review and reverse the Bureau’s decision.
  • Oppositions were due August 10, 2020.
  • On July 28, 2020, the CGB released a Public Notice (DA 20-793) clarifying that its March 20, 2020 Declaratory Ruling (see our coverage here) exempting certain coronavirus-related communications from the consent requirements under the TCPA also covers entities that are reaching out on behalf of a health care provider or government entity.

Click here to see the full FCC Petitions Tracker.

Cases of Note

District Court Finds Repeat TCPA Plaintiff Lacks Standing
In Garcia v. Credit One Bank,  the District of Nevada tossed a TCPA plaintiff’s case for lack of standing.  Plaintiff filed suit after he was called 135 times within a two-week period on a cell phone he had allegedly purchased for his father.  Defendant was attempting to reach the prior owner of the number.
Defendant argued, and the Court agreed, that Plaintiff lacked standing to bring the suit. First, the Court held that Plaintiff did not suffer an injury-in-fact and therefore did not have constitutional standing to bring the suit.  Plaintiff had previously worked as a debt collector and was familiar with the mechanics of a TCPA claim. In light of this, his conduct purchasing pre-paid phone minutes for an unused number and failing to instruct Defendant to cease calling him indicated that he was intentionally building a record of an artificial injury to facilitate a TCPA claim. Second, Plaintiff lacked prudential standing under the TCPA.  To have prudential standing, the alleged injury must fall within the zone of interest to be protected by the statute in question. In light of the factual circumstances of the case, the Court held that Plaintiff did not suffer any injury to his privacy interests that Congress intended to protect by enacting the TCPA. Therefore, Plaintiff lacked standing to bring his claim and the Court entered summary judgment for Defendant, dismissing the action.
Garcia v. Credit One Bank, N.A., No. 2:18-cv-191, 2020 WL 4431679 (D. Nev. July 31, 2020)
Primary User of Phone Survives Motion to Dismiss for Lack of Standing
In Vargas v. Vehicle Solutions Corp., the Middle District of Florida held that Plaintiff had standing to sue under the TCPA as the primary user of the called number, despite not being the subscriber of the cellular plan.  Defendant made a car loan to Plaintiff’s son. After the loan fell into arrears, Plaintiff called Defendant to resolve the matter. Thereafter, Defendant began contacting the number Plaintiff called from, calling hundreds of times using both auto-dialing and recorded messages.” However, neither Plaintiff’s name nor telephone number was associated with the car loan and both the phone and the plan had been purchased by Plaintiff’s daughter. Defendant moved for summary judgment on the sole argument that Plaintiff lacked standing because she was not the cellular subscriber for the plan at issue.
The Court rejected Defendant’s argument and denied Defendant’s motion for summary judgment. The Court held that Plaintiff’s status as the primary user of the phone and number provided valid standing under the TCPA.
Vargas v. Vehicle Solutions Corp., No. 8:19-cv-1109, 2020 WL 4570358 (M.D. Fla. Aug. 7, 2020)
Putative TCPA Class Denied Certification on Numerosity Grounds
A putative class action filed against a debt collector has been denied certification for lack of numerosity. Defendant allegedly obtained Plaintiff’s cell phone number through a skip-tracing service and then placed over a hundred calls, including direct-to-voicemail messages, to that number. Plaintiff filed a putative class action under the TCPA, seeking to certify a class of all Illinois residents who defendant called using the skip-trace service to obtain the numbers.
During discovery, Defendant produced one spreadsheet showing that Defendant had obtained over 10,000 Illinois numbers using the skip-trace process and other spreadsheets showing the numbers to which Defendant had made calls using pre-recorded messages. However, Plaintiff failed to submit evidence that numerosity was met by linking those spreadsheets together, whether in the form of a declaration, deposition testimony, expert opinion, or written discovery response.  Although the Court agreed that it may be highly likely, and thus tempting to assume, that numerosity is met,” it held that these common sense inferences were insufficient to satisfy that required element. Thus, the Court denied Plaintiff’s motion for class certification.
Molinari v. Fin. Asset Mgmt. Sys., No. 18-c-1526, 2020 WL 4345418 (N.D. Ill. July 29, 2020)