Every month or so, we review all Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. (“TCPA”), decisions across the country to stay abreast of  developments as we defend these cases throughout the United States.  In this inaugural issue of the TCPA Case Law Update by Vedder Price, we offer summaries of some of the defense-friendly decisions entered in the past month and a half.  The decisions are listed by issue category in alphabetical order.  We plan to post similar summaries on a roughly monthly basis going forward.  We hope you find this information useful as you ward off these pesky but nevertheless risky claims.
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If you follow developments in TCPA case law, you’ve probably heard by now that the DC Circuit Court of Appeals last week overturned the 2015 FCC Order that had required TCPA opt-out notices on both solicited and unsolicited faxes. The court held that the FCC’s rule was “unlawful to the extent that it requires opt-out notices on solicited faxes.” See Bais Yaakov of Spring Valley v. FCC, et al., Case No. 14-1234 (D.C. Cir.). In fact, the DC Circuit—despite years of FCC guidance, 13 consolidated appeals and more than two dozen lawyers participating in the briefing—seemed to view this as a relatively simple issue of statutory construction: “The text of the Act provides a clear answer to the question presented in this case. . . . Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements. Unsolicited fax advertisements must include an opt-out notice. But the Act does not require (or give the FCC authority to require) opt-out notices on solicited fax advertisements. It is the Judiciary’s job to respect the line drawn by Congress, not to redraw it as we might think best.”
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Yet another court has found that consent in a TCPA case is an inherently individualized issue that precludes class certification. In Newhart v. Quicken Loans, Inc., 2016 U.S. Dist. LEXIS 168721 (S.D. Fla. Oct. 13, 2016), the plaintiff moved to certify a class of individuals who had received calls from defendant on their cellular telephones, allegedly in violation of the TCPA. The court denied class certification, finding that “resolving the consent issue will depend upon multiple layers of individualized evidence about each call and the circumstances that preceded it. Therefore, predominance is lacking.” Id. at *6. Importantly, the court did not need to decide “whether any class member actually consented.” Id.

The court held that the consent analysis had two parts. First, the trier of fact must determine “whether each challenged call was made for a telemarketing purpose.” Id. If so, prior express written consent would be required. If not, the consent need not be in writing. Id. Second, the trier of fact must determine whether the defendant “possessed the requisite consent before making each call.” Id. at *6–7.  The court’s decision that an individualized analysis was necessary turned largely on its finding that the trier of fact must look at each individual call, not the “purpose of the overall campaign. Id. at *7–8. Analogizing to the TCPA fax provision, the court noted that, “[t]he FCC has expressly recognized, in the unsolicited fax context, that even when some aspect of a series of communications might meet the telemarketing rule, others might not, and so it is necessary to examine the communications separately.” Id. at *8. Because evidence showed that the challenged calls in the case were not uniform in purpose, the telemarketing issue could not be resolved on a class-wide basis. Id. at *10. 
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Try as they might, Telephone Consumer Protection Act (TCPA) plaintiffs’ lawyers continue to face judicial resistance to deeming all phones autodialers (automatic telephone dialing systems or ATDS’s). In the latest example, the U.S. Southern District of California granted summary judgment to the defendant, finding the plaintiff’s “evidence” of autodialer use too speculative and too disconnected to the specific calls at issue. See Chyba v. Bayview Loan Serv., 2016 U.S. Dist. LEXIS 133849 (S.D. Cal. Sept. 27, 2016). As the court reasoned, “[N]o matter the name given to the equipment, the ‘basic function’ of an autodialer is ‘the capacity to dial numbers without human intervention.’” Id. at *5 (quoting In re Rules and Regulations Implementing the Tel. Consumer Prot Act of 1991, 18 FCC Rcd. 14014, 14092 (July 3, 2003)).
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Telephone Consumer Protection Act (TCPA, 42 U.S.C. § 227) claims often are a waste of time and money. The plaintiffs frequently are serial (some having filed dozens of claims) and usually want to receive the alleged spam so they can sue and cash in. The harm is slim to non-existent, and the economic burden of the litigation on defendants (and the courts) is staggering. In a ruling on August 8, U.S. Northern District of Illinois Judge St. Eve ruled that she wouldn’t “stand” for this state of affairs any longer (or at least not with respect to the facts before her). She found that because the plaintiff was not in the “zone of interests” intended to be protected by the TCPA, the plaintiff lacked statutory standing. See Tel. Sci. Corp. v. Asset Recovery Solutions, 2016 U.S. Dist. LEXIS 104234, at *50 (N.D. Ill. Aug. 8, 2016).

As a result of selling a tool for screening alleged robocalls, plaintiff Telephone Science Corporation (TSC) claimed it had received a lot of calls in violation of the TCPA. Id. at *4. Judge St. Eve ruled that because the whole purpose of TSC’s business was to identify/screen robocalls, it couldn’t sue under the TCPA based on receipt of those robocalls. Id. at *48–50. In other words, TSC’s claims did not implicate the interests against privacy intrusion and nuisance underpinning the TCPA.
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Over the past three months in the Media & Privacy Risk Report, we’ve analyzed the various parts of the July 10, 2015 FCC TCPA Order (the Order). See 80 Federal Register 61129. The Order’s implications for corporate America are in many respects staggering.

Although the petitioners to the FCC had hoped for clarity, reason and decreased litigation expense as a result of the Order, they instead face more uncertainty, numerous administrative leaps of logic, and exponentially increasing litigation expense because of the blood the TCPA plaintiffs’ bar now sees in the water. At this point, their having petitioned the FCC on the various points covered by the Order appears to have been a very perilous maneuver indeed. But only time will tell whether following administrative protocol before the FCC to ripen these issues for determination by a U.S. Circuit Court of Appeals will pay off in the long run.
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In the July 10, 2015 FCC Order regarding the TCPA (the “Order”), the FCC didn’t just sharpen the litigation “sword” that consumers can use against telemarketers—it also gave them a shield. The FCC affirmed that “nothing in the Communications Act or our rules or orders prohibits carriers or VoIP providers from implementing call-blocking technology that can help consumers who choose to use such technology to stop unwanted robocalls.” Order at ¶ 152. The FCC expressly rejected the notion that “[t]he current legal framework simply does not allow [phone companies] to decide for the consumer which calls should be allowed to go through and which should be blocked,” (Order at ¶ 153) and found that “[a]s long as the carrier offering its own product or coordinating with another product provider offers adequate disclosures, such as that the technology may inadvertently block wanted calls, consumers have the right to choose the technology.” (Order at ¶ 160.) In essence, the FCC found that although common carriers cannot block calls of their choosing, there is no rule against consumers choosing to block calls.
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In the July 10, 2015 Order, the FCC considered whether to allow an exemption to the prior express consent requirement for financial and health care alerts (i.e., autodialed calls to cell phones and text messages) and, if so, under what circumstances. The FCC attempted to strike a balance between consumers’ legitimate needs for time-sensitive information against potential invasions of their privacy rights. In the end, the petitioners—the American Bankers Association (ABA), on the one hand, and the American Association of Healthcare Administrative Management (AAHAM), on the other—got some, but not all, of the relief they had requested.
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If someone asked you to “call” him, what would you do? Shoot him an email? Start a chat on Facebook? Send a text message? Tweet him? Find him on LinkedIn? Chances are, even in this modern era when there are countless ways to communicate, you would still pick up the phone and make a traditional phone call. And certainly that was the case when the TCPA was passed in 1991, before text messages and social media even existed. So it seems like common sense that when the TCPA refers to a “call,” it means a traditional phone call—not a text message. FCC Commissioner Michael O’Rielly expressed this same sentiment in his dissent to the July 10, 2015 FCC Order (the “Order”): “I disagree with the premise that the TCPA applies to text messages. The TCPA was enacted in 1991—before the first text message was ever sent. The Commission should have gone back to Congress for clear guidance on the issue rather than shoehorn a broken regime on a completely different technology.” Order at p. 127.
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So far, our series on the July 10, 2015 FCC Order has painted a pretty bleak picture for businesses hoping to stay in compliance and limit litigation risks. But there was some good news in the FCC Order for certain businesses. Among the many petitions considered by the FCC were three focused on the rule change related to prior express written consent enacted by the FCC in 2012. The FCC’s response to those petitions was generally positive, although the relief actually granted was limited mostly to the petitioning organizations and their members. Still, in an order that is generally considered harmful to businesses, this has to be considered a small victory.
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