TCPA Tracker - October 2021

Recent News 

Reassigned Number Database to Begin November 1; Bureau Sets Interim Rates

On October 1, 2021, the FCC’s Consumer and Governmental Affairs Bureau announced interim usage charges for the new Reassigned Numbers Database (RND).  The FCC established the RND in December 2018 as a way for call originators to determine if a telephone number for which they have consent to call has changed owners since the date of consent.  The RND has been operating in beta mode since July and will go live on November 1, 2021.  With this order, the Bureau sets the rates that users of the database will pay for access.  The Bureau established six subscription tiers, each with a one-month, three-month and six-month subscription option.  Future adjustments to the interim usage charges will be posted on the RND’s website, https://​www​.reas​signed​.us/​s​u​pport

FCC’s Wireline Competition Bureau Establishes a Protective Order for Confidential Information provided in Robocall Mitigation Plan Filings

On October 14, 2021, the FCC’s Wireline Competition Bureau adopted a protective order that will govern the submission of Robocall Mitigation Plans (RMPs) and access to such filings by third parties.  Effective June 30, 2021, Commission rules require voice service providers that have not fully implemented the STIR/SHAKEN call authentication framework to submit a RMP describing the reasonable steps such providers are taking to avoid originating illegal robocalls.  Commission rules allow such RMPs to be submitted on a confidential basis if the filing contains confidential or proprietary information.  The Protective Order establishes procedures for the submission of future plans and allows access to certain entities and indivduals involved in robocall compliance and enforcement.  The Protective Order is effective immediately.
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

  • 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

New Petitions Filed
  • No new petitions filed in October. 

Upcoming Comments
  • No pending comments due.

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

Cases of Note

Court Holds Robocalls’ Into State Provide Personal Jurisdiction Over Non-Resident Defendants

The Southern District of Texas denied a Virginia defendant’s motion to dismiss TCPA claims against it for lack of personal jurisdiction. In its motion, the Virginia company argued, inter alia, that Plaintiff’s TCPA claims could not be heard in Texas as it was not at home” in that state.  The Court found that the company’s telemarketing calls placed to a Texas consumer were sufficient to establish specific jurisdiction.   

The Court confirmed that the Virginia company was not incorporated in Texas and had its principal place of business in Virginia; thus, general jurisdiction could not be established.  However, the Court found that specific jurisdiction was appropriate based on the company’s minimum contacts” with that state. Texas’ long-arm statute permits jurisdiction to the limits of federal due process,” and the Court found that the standard would be satisfied when a nonresident defendant intentionally commits an act outside the state that causes tortious injury within the state.” Analogizing to invasion of privacy, trespass, and nuisance torts, the court held that intentionally calling numbers robotically at random” constituted the type of intentional tortious injury that could satisfy the minimum contacts analysis—even if Defendant did not know that it was placing calls into Texas. The court separately held that Defendant had mailed a product to Plaintiff at her home in Texas, which independently satisfied the minimum contacts analysis as a significant contact with the forum” and knowledge of her presence in Texas before the calls were made.

Defendant also moved to dismiss for the court’s lack of subject matter jurisdiction. First, it argued that Plaintiff did not suffer an injury in fact and therefore lacked standing. That argument was rejected based on finding that the Fifth Circuit’s holding in Cranor v. 5 Star Nutrition, LLC that even a single unsolicited text message conferred Article III standing applied. Second, Defendant argued that the entire TCPA was unconstitutional at the time Defendant placed its call and therefore unenforceable based on the Supreme Court’s holding in Barr that the TCPA’s government-debt exception violated the First Amendment. This too was unsuccessful: following numerous other courts, the court held that the government-debt exception was severable and that the statute could be enforced.

Thomas v. Life Protect 24/7 Inc., No. 4:20-cv-03612, 2021 WL 4127144 (S.D. Tex. Sept. 10, 2021)
Florida Class Certification Denied Due to Deceptive” Conduct of Named Plaintiff

A judge in the Southern District of Florida has denied a putative class Plaintiff’s bid for class certification on the grounds that his deceptive” conduct as a repeat TCPA plaintiff rendered him an atypical and inadequate representative. In Johansen v. Bluegreen Vacations Unlimited, Plaintiff Johansen filed suit claiming that he received eight unwanted telemarketing calls from Defendant. During his deposition, Plaintiff testified that he took actions to prolong” the calls by posing as a customer, including verifying personal information and false contact information. He also testified that he had filed 60 lawsuits prior to 2020, and that he earned around $60,000 per year from TCPA suits.

The Court denied Plaintiff’s motion for class certification finding that his motion failed to meet his burden of showing that he was a typical and adequate class representative. First, the Court found that Plaintiff would be an atypical representative because of his deceptive and dishonest tactics.” Thus, his claim would have different proofs regarding standing, consent, and damages than the typical class member. Next, the Court found that Plaintiff would be an inadequate class representative, expressly considering Plaintiff’s credibility, honesty, and trustworthiness” in light of his self-proclaimed typical practice” of posing as an interested customer. The Court also discussed an opinion from one of Plaintiff’s prior TCPA lawsuits that was dismissed after that court discovered that Plaintiff likewise posed as an interested customer during the initial call, and in fact completed the process to enroll as a customer.

Because Plaintiff was neither a typical nor adequate class representative, the Court denied his motion for class certification.

Johansen v. Bluegreen Vacations Unlimited, Inc., No. 9:20-cv-81076 (S.D. Fla. Sept. 30, 2021).