TCPA Tracker-February 2017
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IN THE FEBRUARY 2017 ISSUE:
| Recent News”,” FCC Petitions Tracker”,” Cases of Note”,” Speaking Engagements “,” The Team To read prior issues of TCPA Tracker, please click here. |
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| West Virginia Court Rejects Theory of Vicarious Liability in TCPA Case Judge Bailey of the Northern District of West Virginia recently granted summary judgment to defendants UTC Fire and Security, and Honeywell International, holding they could not be held vicariously liable for telemarketing calls placed by their dealers. In re Monitronics Int’l, Inc. TCPA Litigation, MDL No. 1:13-MD-2493, 2016 U.S. Dist. LEXIS 177105, at *42 (N.D. W Va. Dec. 22, 2016). Plaintiffs argued that an agency relationship existed through actual agency, apparent agency, and/or ratification between defendants and their dealers because, among other allegations: (i) the dealers held themselves out as authorized representatives on the calls; (ii) defendants reviewed or provided the dealers with sales scripts; and (iii) defendants did not move swiftly enough to stop the alleged illegal calling when it came to their attention. The Court disagreed, holding: “the fact that entities were permitted to hold themselves out as authorized dealers or some similar description is insufficient to hold the moving defendants in this case liable.” Id. at *37-38. For this proposition, the court relied on the Seventh Circuit’s decision in Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1336 (7th Cir. 1995) (“the mere fact that Calumet uses Caterpillar’s name does not render it an agent of Caterpillar, just as every bar which advertises that they sell a particular brand of beer is not the agent of the brewery whose name they advertise.”) The Monitronics court expressly rejected a contrary ruling that it had issued through a predecessor judge in Mey, a case frequently relied upon by TCPA plaintiffs. The ruling is therefore significant because it provides guidance for defendants seeking a dismissal of claims based on third party liability. At the same time, however, nothing in this decision changes the FCC’s express ruling in In re the Joint Petition Filed by Dish Network, LLC that vicarious liability principles apply to the TCPA as a whole. 28 F.C.C.R. at 6587-89 ¶¶ 35, 38 (2013). Thus, vicarious liability under the TCPA continues to be in play, provided a plaintiff can demonstrate sufficient evidence of the existence of an agency relationship. A Notice of Appeal relating to this decision was recently filed in the Fourth Circuit Court of Appeals. 9th Circuit Rules That Revocation of Consent Must Be Express On January 30, 2017, the Ninth Circuit released an order clarifying the meaning of consent under the TCPA, and how a consumer may effectively revoke such consent to be contacted in the future. Van Patten v. Vertical Fitness Group, LLC, No. 14-55980 (9th Cir.) involved a plaintiff who received two unwanted text messages asking him to rejoin his gym after cancelling his membership. When he originally joined the gym, the plaintiff listed his cell phone number as his contact number, and signed an application that contained his cell phone number as his contact information. Three days after joining, the plaintiff canceled his gym membership. He later received two text messages to his cell phone asking him to rejoin the gym, and brought a lawsuit claiming violations of the TCPA. The defendant argued that the plaintiff did not have standing to bring a claim based on a bare statutory violation of the TCPA, in reliance on the Supreme Court’s opinion in Spokeo. Citing the Supreme Court’s rationale in Spokeo, the Ninth Circuit affirmed that “‘both history and the judgment of Congress play important roles’ in supporting [the] conclusion that a violation of the TCPA is a concrete, de facto injury” sufficient to confer Article III standing. The court noted that in enacting the TCPA, Congress made findings that “unrestricted telemarketing can be an intrusive invasion of privacy” and are a “nuisance.” Accordingly, the Ninth Circuit affirmed that a plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the harm of receiving unsolicited telemarketing phone calls or text messages, which, by their very nature, invade the privacy and disturb the solitude of their recipients. Thus, receipt of an unsolicited telemarketing call or text message in violation of the TCPA is a concrete injury in fact sufficient to confer Article III standing. The Ninth Circuit next turned to whether the plaintiff, in filling out the courtesy card and signing the membership application, gave prior express consent, and if so whether he revoked that consent by cancelling his gym membership. The Court first considered the question of consent, and determined that simply providing a phone number does not mean that the consumer has expressly consented to be contacted for any purpose whatsoever. Instead, when a consumer provides his or her phone number during a business transaction, that consumer provides his or her consent to contact for communications related to that transaction. In other words, “the transaction context matters in determining the scope of a consumer’s consent to contact.” In this case, the Ninth Circuit found that text messages inviting the plaintiff to “come back” and reactivate his gym membership were sufficiently related to the reason the plaintiff gave his number in the first place to fall within the scope of his consent to be contacted. Finally, the Court turned to the question of revocation. The plaintiff argued that by cancelling his gym membership, he had revoked his consent. The court disagreed, finding that when revocation is made it must clearly express a desire not to be called or texted, and merely cancelling his membership did not do so. Had the plaintiff stated when he cancelled his membership that he did not wish to be contacted further, or simply responded STOP in response to the first text message he received, he would have revoked his consent. By failing to clearly express a desire not to be contacted in the future, the plaintiff did not revoke his consent. |
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