SEPTEMBER 2015

FCC

The FCC has issued a declaratory ruling concluding that “e-faxes” are subject to the TCPA and the Commission’s related rules.  Declaratory Ruling August 28, 2015 CG Docket No. 02-278.  The Commission also declined to provide “safe harbor” language for fax opt-out notices.

Supreme Court

The Supreme Court is considering another lawsuit which could potentially prevent persons from bringing class actions who had no injury at all.  Tyson Foods, Inc. v. Bouaphakeo.  It is unclear whether this case, involving wage and hour claims, could be applicable to TCPA class actions which involve statutory damages.

Comment: With this case and the Spokeo case already discussed in this newsletter, it seems clear that the Supreme Court is considering action against class actions, even if the FCC and Congress are not.

The Spokeo case has been set for oral argument on Monday, November 2, 2015.  This case will resolve whether Congress has the power under the Constitution to create causes of action where no actual injury occurs.  If the Supreme Court rules in favor of Spokeo, TCPA class actions and other actions involving massive penalties would not be permitted unless consumers were actually injured by the defendants’ actions.

Colorado

The state of Colorado has created a “telemarketing registration claim of exemption form” joining several other states which purport to require exempt entities file a form with the state pursuant to a statute underlined which exempts them.

Comment: I often ask if my desk, child, or dog need to file these exemption forms in these states.  How could a regulator require anything from an exempt entity (or dog)?

Florida

Florida has passed a rule allowing for licensed commercial telephone sellers to hire sales people who do not have a current commercial telephone sales person license.  The seller is to obtain interim operating authority for each unlicensed sales person using this form.  See https://www.flrules.org/gateway/reference.asp?No=Ref-03520.

The Department of Agriculture & Consumer Services has proposed a regulation which would add a definition to the term “in response to an express request” for purposes of exemption to the state no-call law.  Proposed rule 5J-5.001.  The definition would require a signature similar to that required by federal law.  Prior existing business relationship would also be fine using the same definition as federal law.

Illinois

An Illinois court has rejected a proposed class action which would have paid class members zero dollars, the named plaintiff $1,500, and the class action attorneys $98,500.  The size of the class was about 180.  Grok Lines, Inc. v. Paschall Truck Lines, Inc.

Comment: I think it is clear from the fee described above who the real plaintiff is in these types of actions.

Michigan

A federal judge has ruled that a business selling magazines on behalf of a charity did not violate the national “do-not-call” list because the FCC’s regulations exempt sales calls “on behalf of” charities.  Wengle v. DialAmerica Marketing, Inc.

Missouri

A judge has trimmed the plaintiff’s attorney’s fee award in a class action settlement brought against Anthem Blue Cross.  Anthem denied wrongdoing for more than 830,000 calls to cell phone numbers.  The fee request was nearly 44 percent of the settlement fund, but the judge found this amount unreasonable.  Lees v. Anthem Insurance Companies, Inc.

Comment: The plaintiff’s attorney Alexander Burke is well known in the field of TCPA class actions.

North Carolina

A federal judge has dismissed a claim brought against a cable company which called the number associated with a customer, which had been reassigned to the plaintiff.  Danehy v. Time Warner Cable Enterprise, LLC.  The judge found Time Warner was protected by good faith defense that the number was held by a previous subscriber who had expressly consented to calls at that number.

Comment: This decision seems contrary to the FCC’s July 10, 2015 Ruling that callers have one (and only one) call to reassigned numbers before knowledge of the reassignment is inferred, even if the new subscriber does not answer the call.  However, these calls were placed in November 2013.

A North Carolina court has ruled that a person who has received telephone calls has suffered damages such that that person has standing to bring a suit under the TCPA.  Wallace v. Enhanced Recovery Company, LLC.

Comment: The Supreme Court is currently considering whether a nuisance level amount of damages such as the loss of cell phone time constitutes enough damage to bring a federal case consistent with Article III of the Constitution.