NOVEMBER 2018

Federal Communications Commission

Consumer comments submitted in response to the Federal Communications Commission’s (“FCC”) request concerning the definition of automatic telephone dialing system (“ATDS”) urged the FCC to adopt Marks v. Crunch San Diego, LLC and its logic that any system which stores telephone numbers is an ATDS.  Comments were due October 17, 2018 and reply comments were due October 24, 2018.

Comment: If the FCC uses the definition of ATDS found in the statute and assigns meaning to the words “using a random or sequential number generator”, it must, using normal rules of statutory construction, give meaning to those words and limit the term to a system with that capability.

The FCC has requested that phone companies adopt an authentication system to prevent illegal caller ID spoofing.  The process would involve phone networks “fining” caller IDs to authenticate them.

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has rejected a claim for an individual who supposedly attempted to opt-out of texts by sending messages like “Thank you, but I would like the text messages to stop.  Can we make that happen?” instead of “STOP” as instructed in the text.  The lower court and the court of appeals found plaintiff’s notice was not effective.  Epps v. Earthfare Tours.

Comment: A large proportion of Telephone Consumer Protection Act (“TCPA”) cases are “setups”, but the court thought this one crossed the line.

The Ninth Circuit Court of Appeals has ruled that a one-line statement about the availability of its business services did not change a fax into an unsolicited advertisement.  Supply Pro Sorbents, LLC v. Ringcentral, Inc.

Comment: This is consistent with other cases that have ruled that the name of the business itself or a logo alone did not constitute enough advertising content to convert a fax into an actionable “junk fax”.

Second Circuit Court of Appeals

The Second Circuit Court of Appeals has ruled that defendants cannot deposit money with the court to make a plaintiff’s TCPA claim moot.  Geismann v. ZocDoc, Inc.

Comment: This tactic has been almost universally rejected by courts which have held that defendants cannot “buy off” individual plaintiffs.

Sixth Circuit Court of Appeals

The Sixth Circuit Court of Appeals held that an “informational” fax was a pretext for a sales presentation.  Fulton v. Enclarity, Inc

Comment: While informational faxes (and telephone calls) are exempt from most provisions of the TCPA and other telemarketing laws, they are not exempt if they are a subterfuge, i.e. actually a sales attempt disguised as an informational, non-sales or survey communication.

Third Circuit Court of Appeals

The Third Circuit Court of Appeals has affirmed the four-year statute of limitations applicable to TCPA actions.  Weitzner v. Sanofi Pasteur, Inc.  Plaintiff had argued the deadline should be delayed (“tolled”).  The Court ruled that class members could only file individual claims if tolling applied to the statute of limitations.

Comment: Thus, although individual claims may be tolled in pending class actions, the tolling does not apply to subsequent class actions “under any circumstances”. For TCPA cases, that means class actions must be filed within four years of the allegedly illegal acts.

U.S. Senate

Senators Thune and Markey proposed Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED”) to amend TCPA allowing FCC to assess forfeiture in addition to other civil penalties including class actions for violation of the TCPA’s cell phone call ban.

Comment: Penalties for violation of this section are not the issue.  Litigation reform is.  This bill would do little to help legitimate businesses which attempt to comply with the law.

Colorado

Effective December 1, 2018, Colorado intends to enforce new sales tax rules based on the purchaser’s address, rather than the seller’s location.

Comment: This is based on a recent Supreme Court case which reversed previous cases holding that wholly interstate commerce is not subject to state sales tax.  We expected states to aggressively expand their efforts to tax these transactions, and Colorado is following suit.

Florida

A Court has dismissed a purported class action alleging improper texts sent to plaintiff’s telephone.  Gaza v. Auto Glass America, LLC.  Defendant showed its texts were sent with human intervention including specifically selecting each number to receive a text.

A Florida court has granted summary judgment to a defendant after ruling the plaintiff expressly consented to faxes.  Gorss Motels, Inc. v. Safemark Systems, LP.  The defendant sells safes for use in hotel rooms and faxed franchisees of hotel network pursuant to an “approved supplier” program.  Plaintiff was a franchisee and an approved supplier and received faxes pursuant to contact information provided based on its agreement to get offers.  The court agreed and dismissed the case.

Illinois

An Illinois court has held sanctions could be awarded against counsel for a class objector.  Clark v. Gannett Co.  The case involved a $13.8 million settlement between plaintiff and Gannett.  Counsel for the objector demanded $500,000 or he would delay the settlement with frivolous objections.  The appellate court reversed the trial court and ordered it to consider sanctions against the objector’s counsel.

Massachusetts

Another court has upheld the D.C. Appellate Court’s ruling in Bais Yaakov of Spring Valley, et al v. FCC, et al. that the FCC has no authority to require opt-out notices on “solicited” faxes.  Bais Yaakov of Spring Valley v. ACT.  Because consent issues existed, the court held it would have to have an individual inquiry into each member of a purported class and therefore held it could not certify this case as a class action.

New Jersey

A trial court has refused to dismiss a case brought by a consumer against a short-term loan company.  Cunningham v. Capital Advance Sols., LLC.  The defendant had argued that plaintiff’s use of her cell phone solely to receive calls to make TCPA claims made the phone a business telephone not subject to the TCPA’s no-call provisions.  The court disagreed and ruled it was a matter to be determined in discovery.  The court did dismiss the individual defendants noting that the plaintiff did not allege they were more than “tangentially involved” with the complaint about telemarketing calls.

West Virginia

A West Virginia court has ruled that a communication platform provider could be held liable for TCPA violations if it willingly allowed its client to use the platform for unlawful purposes.  Hurley v. Messer.

Comment: I often advise my clients that they can be held liable if they “know, have reason to know, or consciously avoid knowing” wrongdoing by their business partners and continue with that partnership.  This is the “accomplice liability” standard found in the Telemarketing Sales Rule.  Plaintiffs and some regulators will often argue for “strict liability” but an entity with good contract language, appropriate record keeping, and action in the event of learning of potential wrongdoing would be in a good position to avoid liability for its business partners’ actions.

Wisconsin

A Wisconsin court has ruled that a predictive dialer is an ATDS as that term is defined in the TCPA.  Maes v. Charter Communication.

Comment: Cases from many jurisdictions widely vary regarding this issue, and a Supreme Court resolution is likely, even if the FCC steps in with a regulatory ruling.