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Posts tagged as “TCPA”

9th Cir. Rules in Favor of Defendant in Putative TCPA Class Action Involving Third Party Consent

In an unreported ruling, the U.S. Court of Appeals for the Ninth Circuit recently affirmed summary judgment for the defendant in a putative class action for alleged violation of the federal Telephone Consumer Protection Act (TCPA). The Court held that the named plaintiff expressly consented to the text message in question when she provided her cell phone number to a third party contracting with the defendant while using the third party’s services. A link to the opinion in Baird v. Sabre, Inc. can be found here:  Link to Opinion. The named plaintiff booked flights online for herself and her family…

9th Cir. Affirms Denial of Class Cert. in TCPA Action on Ascertainability, Predominance Grounds

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a district court’s order denying class certification in a lawsuit alleging violation of the federal Telephone Consumer Protection Act (TCPA), holding that the “district court did not abuse its discretion by finding the requirements of Rule 23(b)(3) unsatisfied,” and that the “district court appropriately determined that it would be extremely difficult to ascertain the identities of the individuals who had not consented to receive the messages.” A copy of the Ninth Circuit’s opinion in Gannon v. Network Telephone Services, Inc. is available at:  Link to Opinion.  A copy of the…

SDNY Dismisses TCPA Class Action, Holding No Direct or Vicarious Liability Adequately Pled

The U.S. District Court for the Southern District of New York recently dismissed a putative class action alleging violations of the federal Telephone Consumer Protection Act (TCPA) against a marketing company that conducted a mass text message advertising campaign on behalf of a national retail clothing store. In so ruling, the Court held that:  (1) the plaintiffs failed to adequately plead that the marketing company is directly liable under the TCPA as the party who “made” the subject text messages; and  (2) the plaintiffs failed to adequately plead any agency relationship between the marketing company and the company that actually…

Bankruptcy Court Holds TCPA Revocation of Consent Must Be ‘Express and Clear’

The U.S. Bankruptcy Court for the Middle District of Florida recently held that: 1)  A bankruptcy trustee was entitled to recover $1,000 in statutory damages on behalf of each of the husband and wife debtors against a loan servicer for violating the Florida Consumer Collection Practices Act (FCCPA) by contacting the debtors after they were represented by counsel; and 2)  The servicer could not set off the $2,000 in FCCPA damages against the balance owed on the mortgage loan because, according to the Court, allowing a set off would thwart the FCCPA’s goal of deterring abusive debt collection practices; and…

FCC Ruling: E-Faxes Now Subject to Consumer Protections Under TCPA

Unsolicited e-faxes — documents converted to an email or attachment between the faxer and a recipient — are subject to the same consumer protections as unsolicited conventional faxes, according to a recent Federal Communications Commission declaratory ruling. The ruling built upon certain provisions of the Telephone Consumer Protection Act and the Junk Fax Protection Act, establishing that unsolicited communications that begin as faxes, including those converted to an electronic format after they are sent, justify consumer protection because e-faxes can cause some of the same issues and costs for businesses as conventional faxes. E-faxes “can increase labor costs for businesses,…

FCC Approves TCPA Declaratory Ruling Amidst Dissent

The FCC voted a 3-2 majority ‘yes’ today on a TCPA declaratory ruling to expand the law in an attempt to prevent unwanted robocalls and “robotexts,” as well as spam and telemarketing calls to wireless phones. The package of rulings also included the approval of robocalling technologies, oral revocation of consent, redefinition of autodialers, as well as other stipulations and exemptions. The rulings addressed 19 petitions for declaratory rulings, one petition for rulemaking and one request for clarification. The rulings, as of this writing, have not been released. The commissioners’ discussions indicate they will address “autodialers,” and some emerging technologies. Exceptions…

Lawmakers, Chamber: TCPA Proposal May Not Reduce Unwanted Sales Calls, Could Lead to Increased Litigation

U.S. lawmakers urged the Federal Communications Commission and the Federal Trade Commission to reconsider exemptions to the FCC’s new proposal to update rules that protect Americans from unwanted sales calls, saying that the reforms may not be effective in reducing TCPA violations. In advance of the FCC meeting to vote on Chairman Tom Wheeler’s proposal, U.S. Rep. Tony Cardenas, D-Calif., and fellow members of the House Committee on Energy and Commerce Reps. Jerry McNerney, D-Calif., Leonard Lance, R-N.J., and Gus Bilirakis R-Fla. said the increased TCPA rules in the FCC’s proposal may in fact make it easier for companies to target consumers, rather than…

FCC to Strengthen TCPA Rules in One of Biggest Actions Since Do-Not-Call List

FCC Chairman Tom Wheeler announced Wednesday that the FCC will move to protect consumers from unwanted robocalls and texts like never before by proposing new standards for TCPA regulation that will be voted on next month. Establishing new rules, closing loopholes, and simplifying the opt-out process for consumers are the three main goals of the proposal, which Wheeler calls “yet another win for consumers.” The FCC considers this proposal to be one of the most significant consumer protection actions since it helped to establish the Do-Not-Call Registry in 2003. The crackdown on robocalls, texts, and telemarketer calls; the number one source of…

TCPA Roundup: As Big Data Grows, So Does Scale of TCPA Violations

As big data grows, so does the scale of TCPA violations, and with that the settlements; one of the largest in TCPA history was in the news last week. In a California district court, attorneys who guided consumers in suing a bank for a $32 million settlement were denied a bid to increase their fees to $8 million. The settlement was the largest TCPA deal to be approved at the time, settling the case in which the plaintiffs claimed they had received automated phone calls from the defendants without their consent. However, this past July saw a $75.5 million settlement granted preliminary approval in…

TCPA Victory May Expand Scope of Vicarious Liability Claims

Companies that hire vendors to place automated calls to cell phones may find themselves at greater risk for Telephone Consumer Protection Act troubles following a decision from the Ninth Circuit Court of Appeals in Thomas v. Taco Bell Corp. The recent decision follows a May 2013 ruling from the Federal Communications Commission in In re Dish Network, LLC, that applied an expanded view of liability for a vendor’s conduct (also known as “vicarious liability”). Widening the TCPA Trap for Vendor Conduct What the FCC said in In re Dish Network, LLC  is that TCPA liability is not limited to the “classical” theory of a company’s responsibility for its vendor’s wrongdoing, the theory being that a company is…