FEBRUARY 2017

Eighth Circuit

An appeals court has approved a class attorneys’ fees award of $2.8 million in a Telephone Consumer Protection Act (“TCPA”) class action against Lifetime Fitness, Inc.  In re: Lifetime Fitness, Inc.  Class counsel initially moved for $4.2 million in attorneys’ fees.  The total settlement amount was $10 million.

Federal Communications Commission (“FCC”)

A group of 14 organizations filed a petition on February 1, 2017 opposing the FCC’s exemption for debt collectors calling to collect federally-guaranteed debts.

The FCC has announced request for comment on a petition by two individuals who have asked the FCC to revoke its interpretation of “prior express consent” if a consumer provides his or her telephone number to a caller and does not make instructions to the contrary.  This standard of express consent is relevant when calls are for non-sales purposes (e.g. political polling, requests for donations, shipment notifications, etc.)

Comment: The petitioners, through their lawyers, claim that the FCC was not entitled to make this ruling and is not entitled to “deference” from the court in its interpretation of the TCPA.  Both are potential plaintiffs in class actions, one in the Eastern District of Virginia involving health insurance calls, and the other as yet unfiled, involving ongoing extermination services.

On February 13, the ACA International, a trade group of debt collecting companies, filed comments opposing limitations the FCC imposed on the exemption from the cell phone call ban for calls regarding debts owed to or guaranteed by the United States government.  See http://www.acainternational.org/assets/advocacy/reply-comments-aca-international-tcpa-pet-for-recon-2-13-17-final1.pdf.  The trade group argued that the FCC imposed so many limitations on the exemption that it was functionally without meaning.  It also argued that the exemption should cover calls to reassigned numbers made in good faith.

Federal Trade Commission (“FTC”)

The FTC is mailing more than $20 million in refund checks to T-Mobile customers whose bills were “crammed” with charges for third-party services.

Ninth Circuit

An appellate court from the Ninth Circuit affirmed an earlier ruling regarding text messages sent by a gym to its members.  VanPatton v. Vertical Fitness Group.  The plaintiff argued he revoked his consent when he cancelled the membership, but the court disagreed noting he had provided his cell phone number as a contact number on the gym membership contract.

Comment: Interestingly, the consent did not contain all of the elements required by the FCC, but since the text occurred before the FCC’s publication of those new standards in 2012, the court ruled that express consent was effective for this case.

California

A California court has ruled that a plaintiff who could not prove she was a member of a class was not able to bring a class action under the TCPA.  Valle v. Global Exchange Vacation Club

Comment: The California judge relied on the Supreme Court’s decision in Wal-Mart v. Dukes and could be relevant to TCPA cases where plaintiffs request calls, then sue alleging a class of persons who did not “expressly consent” to the calls.

Illinois

An Illinois court has dismissed class action portions of a TCPA claim brought against a medical service provider and a debt collection company working on its behalf.  Cholly v. Uptain Group, Inc.  The plaintiff had provided consent but alleged she revoked it, and the court agreed with the defendants that she could not represent persons who never gave consent in the first place.  The judge then rejected a claim for persons who had revoked prior express consent as a “company specific” “do-not-call” request presented an individualized fact question.

Michigan

A Michigan court dismissed a case brought by a dentist against an entity that sent him an unsolicited fax.  Fulton v. Enclarity, Inc.  The fax did not offer the plaintiff any property, goods, or services for sale and the defendant therefore claimed it was non-commercial.  The court agreed that the fax did not constitute an advertisement and dismissed the case.

Missouri

A Missouri court has refused to dismiss a TCPA case involving “wrong number” calls to the plaintiff.  The court agreed with the plaintiff that his annoyance and outrage as well as out-of-pocket airtime minutes constituted damages such that he could sue under the TCPA.  Williams v. zZounds Music.

Pennsylvania

A bill has been introduced in the Pennsylvania House (HB 263) which would revoke the exemption for sales on behalf of charities from registration under the state’s telemarketing law.

Comment: Solicitation of donations would still be exempt, but persons making sales on behalf of charities, and the charities, would be required to register under the law.

A bill has been proposed in the Pennsylvania House (HB 105) which would ban telemarketing on legal holidays and create specific requirements for prerecorded “robocalls” including a key press or voice operated opt-out option.

Vermont

A bill has been introduced in the Vermont House (HB 182) which would require registration for any entity engaging in lead generation for mortgage loans in the state of Vermont, including generating leads through telemarketing.