TCPA Watch – Page 6 – Business, legal and policy developments under the Telephone Consumer Protection Act.

Second Circuit Affirms Denial of Class Certification in TCPA Case on Ascertainability Grounds Due to Lack of Recipient List

Feb 17 2017

By Joseph Wylie, Molly McGinley, Nicole Mueller

In a non-precedential opinion issued earlier this week, the Second Circuit held in Leyse v. Lifetime Entertainment Services, LLC, that a class could not be certified in a Telephone Consumer Protection Act case because the plaintiff did not have a list of the recipients of telemarketing phone calls. The Second Circuit followed its own precedent identifying ascertainability as an “implied requirement” under Rule 23. In so ruling, the Second Circuit has further demonstrated the different approaches to ascertainability that federal circuit court apply (previously discussed here).

Rep. Virginia Foxx Seeks to Prohibit Political Robocalls to Numbers on Do-Not-Call Registry

Feb 07 2017

By Pamela J. Garvie, Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, and Molly K. McGinley

Rep. Virginia Foxx (R-NC) has introduced a bill, H.R. 740 (the “Robo Calls Off Phones Act” or “Robo COP Act”), to “stop the intrusion of political robocalls in homes across America.” Rep. Foxx stated that “politicians made sure to exempt political robo-calls from the power of the ‘Do Not Call’ registry. If these calls weren’t such a nuisance, their blatant exclusion would be laughable.” Claiming that eligible voters receive more than 20 political prerecorded voice calls per day, Rep. Foxx seeks through the bill to end the “robocall loophole” for politicians.

Jury Awards $20M Verdict For Violation of National Do-Not-Call Rules

Jan 25 2017

By Joseph C. Wylie II, Molly K. McGinley, Lexi D. Bond

A Greensboro, North Carolina jury handed down a $20.5 million verdict against Dish Network (“Dish”) last week in a class-action lawsuit, Krakauer v. Dish Network L.L.C., case number 1:14-cv-00333, brought under the Telephone Consumer Protection Act (“TCPA”). The verdict came after a five-day trial presided over by U.S. District Judge Catherine Eagles of the Middle District of North Carolina. Class representative Dr. Thomas Krakauer alleged Dish was responsible for telemarketing calls placed by an authorized Dish dealer to persons whose telephone numbers were on the National Do Not Call Registry.

Ajit Pai to be Named New FCC Chairman

Jan 23 2017

By Pamela J. Garvie, Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, and Molly K. McGinley

On Friday, January 20, 2017, shortly after the conclusion of the presidential inauguration, news broke that Ajit Pai, a Republican Commissioner on the Federal Communications Commission (“FCC” or “Commission”) and its acting Chairman, will be named the permanent Chairman of the FCC. Commissioner Pai will assume the permanent chairmanship from former Chairman Tom Wheeler, who resigned effective January 20, 2017. Because Commissioner Pai is a sitting member of the FCC, his appointment as permanent chair does not require Senate confirmation.

TCPA Class-Action Plaintiff Must Arbitrate Claims

Jan 18 2017

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Matthew T. Houston

The U.S. District Court for the Western District of Washington (“Court”) recently allowed a defendant to enforce the arbitration provision in a TCPA plaintiff’s wireless agreements even though the defendant was not a party to the wireless agreements. The plaintiff in Rahmany, et al. v. T-Mobile USA, Inc., et al., Case No. 2:16-cv-01416-JCC (W.D. Wash.), brought suit against Subway Sandwich Shops, Inc. and the plaintiff’s wireless carrier, alleging that the companies violated the TCPA by sending unsolicited text messages to the plaintiff and a putative class of individuals. Shortly after filing suit, the plaintiff voluntarily dismissed the wireless carrier. Subway, however, sought to enforce the mandatory arbitration clause in the agreement between the plaintiff and his wireless carrier, even though Subway was not a party to that agreement. The clause required the plaintiff to individually arbitrate disputes unless the plaintiff opted out of the provision within 30 days of signing the contract, which the plaintiff had not done.

Court Reaffirms Dismissal of TCPA Claims By Professional Plaintiff

Jan 10 2017

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

In a decision released last week, the District Court for the Northern District of Illinois denied a plaintiff’s motion for an order altering the court’s order dismissing the second amended complaint without prejudice and granting it leave to file an amended complaint. In Telephone Science Corporation v. Asset Recovery Solutions, LLC, the court previously granted defendant Asset Recovery Solutions, LLC’s (“ARS”) Rule 12(b)(6) motion to dismiss the second amended complaint of plaintiff Telephone Science Corporation (“TSC”), with prejudice, for failure to satisfy the “zone-of-interests” test under the Telephone Consumer Protection Act (“TCPA”) (previously discussed here).

New House Energy & Commerce Committee Leaders Good News for TCPA Reform

Jan 07 2017

By Pamela J. Garvie, Peter V. Nelson, Elana Reman, Andrew C. Glass, Joseph C. Wylie II, and Gregory N. Blase

Last month, Rep. Greg Walden (R-OR) was selected by U.S. House of Representatives Republicans as the new Chairman of the House Energy and Commerce Committee. He succeeds Rep. Fred Upton (R-MI), who had to step down due to term limits. Today, Rep. Walden announced Energy and Commerce Committee Subcommittee leaders for the 115th Congress. Rep. Marsha Blackburn (R-TN) was named the Chair of the Subcommittee on Communications & Technology and Rep. Leonard Lance (R-NJ) will serve as Vice Chairman.

Sixth Circuit Reverses Denial of Class Certification and Dismissal Under Rule 68 in Purported Unsolicited Fax Case

Dec 23 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The Sixth Circuit reversed a lower court’s denial of class certification and dismissal of an action following a lapsed offer for individual judgment in a decision released earlier this month. In doing so, the Sixth Circuit held that a defendant opposing class certification in a Telephone Consumer Protection Act (“TCPA”) case on the ground that issues of individualized consent predominate must do more than present “speculation and surmise to tip the decisional scales” because a “possible defense, standing alone, does not automatically defeat predominance.” The court also held that a defendant may not escape potential class-wide liability through an unaccepted offer of individual judgment.

FCC Chairman Tom Wheeler Announces He Will Not Serve Out Term under New Administration

Dec 15 2016

By Pamela J. Garvie, Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Molly K. McGinley, and Roger L. Smerage

On Wednesday, the Federal Communications Commission (“FCC”), which has regulatory authority over the Telephone Consumer Protection Act (“TCPA”), announced that Chairman Tom Wheeler plans to resign as of January 20, 2017, when President-Elect Trump is expected to be inaugurated. Appointed in 2013 by President Obama, Chairman Wheeler’s term was not set to expire until 2018. It is tradition, however, for a sitting chair whose term extends into a new presidential administration to resign when the new president is from the other political party.