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District court orders TCPA suit to mediation, states FCC’s interpretation of autodialer may take years
On February 1, the U.S. District Court for the Eastern District of Missouri issued an order referring the parties in a putative TCPA class action to mediation. The plaintiff’s complaint alleges that the defendant’s insurance company sent her text messages without her consent using an automatic telephone dialing system (autodialer). In response, the defendant argued that the software it used to send the text messages does not qualify as an autodialer because it calls numbers from a pre-set list, instead of one that is randomly or sequentially generated. The defendant further argued that the case should be stayed because the FCC is currently considering whether systems such as the one at issue qualify as autodialers under the TCPA following the D.C. Circuit’s March 2018 ruling in ACA International v. FCC, which set aside the FCC’s 2015 interpretation of an autodialer as “unreasonably expansive.” (Covered by a Buckley Special Alert.) The decision to refer the case to mediation comes after the court’s August 2018 order denying the defendant’s motion to stay the proceeding. In that order the court explained that, although the FCC issued a notice in May 2018 (covered by InfoBytes here) seeking comments on the interpretation of the TCPA, the rulemaking process would likely take years and may not even resolve the issue in the case.
District Court allows TCPA action to proceed, citing 9th Circuit autodialer definition as binding law
On January 17, the U.S. District Court for the District of Arizona denied a cable company’s motion to stay a TCPA action, disagreeing with the company’s arguments that the court should wait until the FCC releases new guidance on what constitutes an automatic telephone dialing system (autodialer) before reviewing the case. A consumer filed a proposed class action against the company, arguing that the company violated the TCPA by autodialing wrong or reassigned telephone numbers without express consent. The company moved to stay the case, citing the FCC’s May 2018 notice (covered by InfoBytes here), which sought comments on the interpretation of the TCPA following the D.C. Circuit’s decision in ACA International v. FCC (setting aside the FCC’s 2015 interpretation of an autodialer as “unreasonably expansive”). The company argued that the FCC would “soon rule on what constitutes an [autodialer], a ‘called party,’ in terms of reassigned number liability, and a possible good faith defense pursuant to the TCPA,” all of which would affect the company’s liability in the proposed class action. The court rejected these arguments, citing as binding law Marks v. Crunch San Diego, LLC, a September 2018 decision from the U.S. Court of Appeals for the 9th Circuit that broadly defined what constitutes an autodialer under the statute (covered by InfoBytes here), and therefore, determining there was nothing to inhibit the court from proceeding with the case. As for the FCC’s possible future guidance on the subject, the court concluded, “there seems little chance that any guidance from the FCC, at some unknown, speculative, future date, would affect this case.”
FCC to create reassigned number database to reduce unwanted calls
On December 12, the FCC adopted new rules to establish a single, comprehensive database designed to reduce the number of calls inadvertently made to reassigned numbers as part of its strategy to help stop unwanted calls. According to FCC Chairman Ajit Pai, the database would enable callers to verify—prior to placing a call—whether a number has been permanently disconnected and is therefore eligible for reassignment. Currently, callers may be held liable under the TCPA should they call a reassigned number where the new party did not consent to receiving calls. The FCC also announced it will (i) add a safeguard requiring a “minimum ‘aging’ period of 45 days before permanently disconnected telephone numbers can be reassigned”; and (ii) provide a safe harbor from TCPA liability for any calls to reassigned numbers due to database error. However, FCC Commissioner Michael O’Reilly stated that while he supported the creation of the database, he expressed reservations about both the cost and effectiveness, stating “only the honest and legitimate callers will consult the reassigned numbers database—not the criminals and scammers.” O’Reilly suggested developing better, more logical interpretations of the TCPA, asserting that “much more work remains, particularly on narrowing the prior Commission’s ludicrous definition of ‘autodialer,’ and eliminating the lawless revocation of consent rule.”
Additionally, the FCC announced a ruling (see FCC 18-178) denying requests from mass-texting companies and other parties for text messages to be classified as ‘“telecommunications services’ subject to common carrier regulations under the Communication Act.” If the request had been granted, the FCC stated, the classification would have limited wireless providers’ efforts to effectively combat spam and scam robotexts. Rather, the FCC classified SMS and Multimedia Messaging Services as “information services” under the Communications Act, which allows wireless providers the ability to take action to stop unwanted text messages, such as applying filtering technologies to block messages that are likely spam.
Virginia Attorney General joins bipartisan coalition to stop or reduce robocalls
On December 6, Virginia Attorney General Mark Herring announced he is joining a bipartisan group of 40 state Attorneys General to stop or reduce “annoying and dangerous” robocalls. The multistate group is reviewing, through meetings with several major telecom companies, the technology the companies are pursuing to combat robocalls. According to the announcement, the working group’s goals are to (i) develop an understanding of the technology that is feasible to combat unwanted robocalls; (ii) encourage the major telecom companies to expedite a technological solution for consumers; and (iii) determine if the states should make further recommendations to the FCC. As previously covered by InfoBytes, in October, a group of 35 Attorneys General, including Herring, submitted reply comments to the FCC in response to a public notice seeking ways the FCC could create rules that would enable telephone service providers to block more illegal robocalls. In their comments to the FCC, the coalition encouraged the FCC to implement rules and additional reforms that go beyond the agency’s 2017 call-blocking order, which allows phone companies to proactively block illegal robocalls originating from certain types of phone numbers.
District Court rules text message inviting a responsive text does not violate TCPA
On November 29, the U.S. District Court for the District of New Jersey partially denied a company’s motion to dismiss proposed class action allegations that it violated the TCPA when it used an automatic telephone dialing system (ATDS) to send unsolicited text messages to customers’ cell phones that resulted in additional message and data charges. According to the opinion, the company sent three text messages to the plaintiff who responded to two of them. The first message gave the plaintiff the option to send “STOP” to opt out or “HELP” to receive assistance. Because the plaintiff texted “HELP” in response, the court found that the plaintiff consented to receiving the company’s second message; the court found that the third follow-up message was permissible because it was a single “confirmatory message” sent after the plaintiff texted “STOP” after receiving the second follow-up message. However, the court determined that the plaintiff satisfied the burden of showing at this stage in the proceedings that the first text message was sent from a company with whom he had no prior relationship and had not provided consent. “When an individual sends a message inviting a responsive text, there is no TCPA violation,” the judge ruled. “The TCPA prohibits a party from using an ATDS ‘to initiate 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 falls within one of the statute’s enumerated exemptions.”
The court further denied the company’s motion to stay pending the FCC’s interpretation of what qualifies as an ATDS in light of the decision reached by the D.C. Circuit in ACA International v. FCC, stating, among other things, that the company “has not established the FCC proceedings will simplify or streamline the issues in this matter” and that the plaintiff is entitled to discovery concerning the company’s communication devices.
FCC urges voice providers to participate in spoofed robocalls “traceback” program
On November 6, the FCC announced that it sent letters to voice providers urging them to participate in “traceback” efforts to help the FCC identify the source of illegal spoofed robocalls. The FCC released copies of the letters that it sent to eight voice providers that are not currently assisting with the USTelecom Industry Traceback Group’s program, which seeks to trace the robocalls that pass through the voice providers’ networks to the originating provider.
In the announcement, the FCC notes that: (i) traceback efforts assist the FCC in identifying the source of illegal calls; and (ii) the FCC receives more complaints from consumers regarding unwanted calls—including scam calls that use spoofing to trick consumers—than any other subject. The FCC emphasizes that “consistent participation of all network operators is critical for helping consumers and enforcing the law.”
Coalition of state Attorneys General encourages FCC to create rules to block illegal robocalls
On October 8, a collation of 35 state Attorneys General submitted reply comments in response to a public notice seeking ways the FCC could create rules that will enable telephone service providers to block illegal robocalls. In their comments to the FCC, the coalition encourages the FCC to implement rules and additional reforms that go beyond the agency’s 2017 call-blocking order, which allows phone companies to proactively block illegal robocalls originating from certain types of phone numbers. (See previous InfoBytes coverage here.) “Many illegal robocallers, however, simply do not care about the law and have a more insidious agenda — casting a net of illegal robocalls to ensnare vulnerable victims in scams to steal money or sensitive, personal information,” the coalition stated. “[C]riminals are estimated to have stolen 9.5 billion dollars from consumers through phone scams in 2017.” The coalition encourages collaboration between states, federal counterparts, and the domestic and international telecommunications industry, and applauds recent progress on the implementation of frameworks such as the “Secure Telephone Identity Revisited” and “Secure Handling of Asserted information using toKENs” protocols that assist service providers in identifying illegally spoofed calls.
FCC seeks comments on interpretation of TCPA definition of autodialer following 9th Circuit decision
On October 3, the FCC’s Consumer and Governmental Affairs Bureau released a notice seeking comment on the interpretation of the TCPA in light of a recent 9th Circuit decision, which broadened the definition of an automatic telephone dialing system (autodialer) under the TCPA. As previously covered in InfoBytes, on September 20, the 9th Circuit held that the TCPA’s definition of an autodialer includes equipment with the capacity to store numbers to be called and to automatically dial such numbers whether or not those numbers have been generated by a random or sequential number generator. The court, however, declared the statutory definition of an autodialer to be “ambiguous on its face” and, thus, it looked to the context and structure of the TCPA in reaching its conclusion regarding the scope of the definition.
The FCC issued the notice “to supplement the record developed in response” to a prior notice issued last May, which sought comments on the interpretation of the TCPA following the D.C. Circuit’s decision in ACA International v. FCC. (See previous InfoBytes coverage on the May 2018 notice here.) Specifically, the FCC seeks comments on the following issues relevant to developing an interpretation of the TCPA’s definition of autodialer: (i) To the extent the definition of an autodialer is ambiguous, how should the FCC exercise its discretion to interpret such ambiguities? (ii) Does the 9th Circuit’s interpretation mean that any device with the capacity to dial stored numbers automatically qualifies as an autodialer? (iii) What devices have the capacity to store numbers, and do smartphones have such capacity? and (iv) What devices that have the capacity to dial stored numbers also have the capacity to automatically dial such numbers and do smartphones have such capacity?
Comments are due October 17 with reply comments due October 24.
11th Circuit holds deaf plaintiff not required to file complaint with FCC before filing lawsuit under other federal disability rights laws
On September 28, the U.S. Court of Appeals for the 11th Circuit vacated a district court’s decision to grant a Florida city’s (City) motion to dismiss for lack of subject matter jurisdiction, holding that (i) the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) did not require the appellant to exhaust his remedies before the FCC prior to commencing a lawsuit under other federal disability statutes; and (ii) the primary-jurisdiction doctrine does not apply to this case.
According to the opinion, the appellant, a deaf individual, alleged that none of the video content stored on the City’s four webpages provided closed captioning, in violation of the Rehabilitation Act and the Americans with Disabilities Act. The district court dismissed the action without prejudice, holding the CVAA requires exhaustion of remedies by the FCC as a prerequisite to the filing of a lawsuit.
On appeal, the 11th Circuit rejected as “an overbroad reading of the statute” the City’s argument that the CVAA contains an exhaustion requirement for claims brought under other disability rights statutes. In support of its position that the FCC only has exclusive jurisdiction over closed captioning complaints brought under the relevant section of the CVAA, the Court cited a 9th Circuit decision, which concluded “the FCC’s exclusive jurisdiction over complaints under the CVAA does nothing to extinguish [the plaintiff’s] right to pursue broader relief for online captioning under [California state law].” In rejecting the City’s primary-jurisdiction argument, the 11th Circuit first cited instances where the FCC—in a report to Congress and in a communication to this plaintiff in an unrelated action—took the position that the CVAA does not require plaintiffs to exhaust administrative remedies as a prerequisite to bringing lawsuits under other federal statutes. The Court also applied the two-factor primary jurisdiction doctrine test, concluding that (i) the FCC has no expertise with respect to the claims under the other federal disability rights statutes before the lower court; and (ii) “this case presents no special need for uniformity.”
FCC fines health insurance lead generator $82 million for spoofed robocalls
On September 26, the FCC announced that it fined a telemarketer and associated companies more than $82 million for using allegedly illegal caller ID spoofing to market and generate leads for health insurance sales in violation of the Truth in Caller ID Act (the Act). The Act prohibits telemarketers from purposefully falsifying caller ID information with the intent to harm, defraud consumers, or wrongfully obtain anything of value. The FCC alleges that the telemarketer made more than 21 million robocalls with spoofed caller ID information, which makes it difficult for consumers to register complaints and for law enforcement to track and stop the illegal calls. According to the related Forfeiture Order (FCC 18-134), the FCC rejected the telemarketer’s argument that the value he received from the calls was not “wrongfully obtained,” concluding that the calls were placed without prior consent, including contacting consumers on the Do Not Call registry, and that the telemarketer knew the tactics he used to obtain the insurance leads were unlawful. The FCC also rejected the telemarketer’s request to reduce the penalty, stating “the proposed forfeiture of $82,106,000 properly reflects the seriousness, duration, and scope of [the telemarketer]’s violations.”