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The district court in the Northern District of Illinois granted summary judgment to the defendant in a TCPA case on the grounds that its dialing system no longer fit the definition of an automatic telephone dialing system (“ATDS”) because it dialed numbers from a stored list.  In doing so, the Court reversed its previous decision on summary judgment and clearly rejected the FCC’s previous guidance on the issue. 

The case is Johnson v. Yahoo!, Inc., No. 14-cv-2028 (N.D. Ill. November 29, 2018).  A copy of the opinion can be found here. 

Plaintiff Rachel Johnson alleged the defendant’s text messaging services caused text messages to be sent to her by pulling her number from its address book and automatically sending text messages to her cell phone, violating the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).  In first denying the defendant’s motion for summary judgment in 2014, the Court reluctantly relied on FCC decisions from 2003, 2008, and 2012 that interpreted “ATDS” to include systems that dialed numbers from a stored list without human intervention.  The Court noted its disagreement with this expansive interpretation but concluded that it was bound to follow the FCC guidance. 

However, after ACA International v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018) overturned the FCC’s 2015 Order, which reaffirmed the previous orders, the defendant filed a motion for reconsideration and the Court jumped at the chance to revisit its previous ruling.  The Court first considered whether ACA International left the previous FCC Orders intact – a question that has divided courts since March.  It found that ACA International had “wiped the slate clean” because the 2015 Order “brought the entire agency definition of ATDS up for review in the D.C. Circuit.”  The court in ACA International “was telling the agency to start over.” 

No longer bound to apply the “more expansive interpretation” of the FCC, the Court turned to the text of the statute.  Finding the statute “is not ambiguous,” the Court determined an ATDS must store or produce numbers using a random or sequential number generator and dial those numbers.   Although the Court relied on the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC for the proposition that the previous orders no longer had effect, it took a more commonsense approach to its reading of the statute and did not adopt the expansive interpretation in Marks.  Therefore, the Court granted the defendant’s motion for reconsideration and granted summary judgment in its favor because its system did not meet the definition of an ATDS. 

In the wake of ACA International, courts have split on a number of questions, including the effect of the decision on prior FCC Orders and what the proper definition of an ATDS is now.  The Court in Johnson joined a number of courts that have found the prior FCC rulings to be eviscerated.  Likewise, many courts considering the definition of an ATDS have found that a system must have the capacity to dial numbers that have been randomly or sequentially generated to qualify, including published opinions from the Second Circuit in King v. Time Warner Cable, Inc. and the Third Circuit in Dominguez v. Yahoo, Inc.  However, some courts, such as Marks, have read the statute to include the expansive definition previously embraced by the FCC, even though the D.C. Circuit rejected that expansive definition. 

Fortunately, the FCC appears poised to resolve this uncertainty and issue guidance on the definition of what constitutes an ATDS.  Currently before it is a petition for a declaratory ruling on the definition of an ATDS and it has sought comment on the issue.  Most industry insiders expect a ruling from the FCC soon, and many expect it to adopt a similar definition as the court in Johnson.  Troutman Sanders will continue to monitor the TCPA landscape in the meantime.

 

On November 28, Senators Dianne Feinstein (D-Calif.) Richard Blumenthal (D-Conn.), and Amy Klobuchar (D-Minn.) introduced the REAL PEACE Act, short for “Robocall Elimination At Last Protecting Every American Consumer’s Ears.”  The goal of the legislation is to provide the Federal Trade Commission with the power to regulate companies that facilitate robocalls and, of particular importance, end the common carrier exemption in the Federal Trade Commission Act that purports to enable illegal robocalling.

With respect to the REAL PEACE Act, Sen. Feinstein noted in her official press release that, “[i]llegal robocalls are a nuisance to every person with a phone number” and “[t]echnology advances have helped robocallers hide their true identity and location, making it easier for them to relentlessly target and harass Americans.  Our bill will close an FTC loophole so we can finally put illegal robocallers out of business.”

Relatedly, Sen. Blumenthal stated that “[t]his bill would close an outdated loophole that enables scammers and spammers to make intrusive and illegal robocalls to millions of unsuspecting American households, without suffering any consequences.”  Further, Sen. Blumenthal offered that “[t]hese calls are not just unsolicited and disruptive—they are often dangerous and used to defraud consumers.  Telecommunication companies should be doing everything they can to protect their customers from illegal robocalls. The REAL PEACE Act will give long neglected enforcement authority to the FTC that allows them to more aggressively crack down on these calls and finally hold bad actors accountable.”

Based on the comments surrounding the purpose of the REAL PEACE Act, it is clear that lawmakers—specifically, Democratic lawmakers—are focused on trying to find different ways to regulate “robocallers” generally, as well as expand regulatory oversight of various communications that are directed at consumers.

On November 27, the Third Circuit Court of Appeals affirmed a district court’s dismissal of a second putative Telephone Consumer Protection Act class action on the grounds that the American Pipe tolling principles did not apply, meaning the plaintiff’s claims on behalf of himself, his company, and the purported class were untimely.

In Weitzner v. Sanofi Pasteur, Inc., Ari Weitzner and Ari Weitzner M.D. P.C. argued that their TCPA claims—stemming from unsolicited faxes sent in April 2004 and May 2005—filed in federal court in November 2011 were timely under the tolling principles of American Pipe.

Ari Weitzner originally filed a purported class action for violation of the TCPA in Pennsylvania state court seeking to represent a class of individuals that received unsolicited faxes from the appellee.  The state court denied class certification in June 2008, after which Weitzner continued to pursue his claim individually in state court.  In November 2011, more than six years after receipt of the alleged unsolicited faxes, the plaintiffs filed a second putative TCPA class action, this time in the Western District of Pennsylvania.

Sanofi moved for summary judgment on statute of limitations grounds, arguing the four-year statute of limitations under the TCPA expired more than two years prior to their filing of the complaint.  The plaintiffs opposed summary judgment, arguing that the statute of limitations for their TCPA claims and the claims of the putative class members were tolled under American Pipe due to the class action complaint filed in state court.

The district court granted summary judgment, finding “that American Pipe tolling did not apply to [appellants’] class or individual claims and that [appellants’] claims were therefore untimely.”  The Third Circuit Court of Appeals reviewed the district court’s decision de novo and ultimately affirmed the decision.

The Court of Appeals looked at three issues: application of American Pipe to the class claim, to Ari Weitzner’s individual claims, and to Ari Weitzner M.D. P.C.’s claims.

First, the Court quickly disposed of the purported class claim by relying on recent Supreme Court precedent, China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1804 (2018), which clarified “that American Pipe tolling does not allow a putative class member to commence a new class action outside of the statute of limitations.”  The Third Circuit found that because China Agritech “precludes the application of American Pipe tolling to successive class claims,” the class claims were not subject to tolling and were therefore untimely.

Second, the Court of Appeals addressed the application of American Pipe to a named plaintiff in a putative class action.  Here, Weitzner was the named plaintiff in the purported class action filed in state court.  When assessing whether American Pipe applied to appellant Weitzner’s individual claim, the Court of Appeals looked to the two primary purposes underlying the Supreme Court’s decision in American Pipe: (1) efficiency and economy of litigation, and (2) “protecting the interest of putative unnamed class members who had not received notice and were unaware of the pending class action.”  Weighing the purposes of American Pipe tolling, the Court held there was no reason to extend the tolling to a named plaintiff.   Specifically, the Court found that because a named plaintiff may pursue their individual claim after class certification is denied in the originally filed class action, there was no purpose for allowing a named plaintiff to file a new individual claim outside of the statute of limitations period and “no injustice results from denying those parties tolling.”

Third, the Court of Appeals assessed whether American Pipe tolling saved appellant Ari Weitzner M.D. P.C.’s individual claim.  This corporation was not a named plaintiff in the state court action but rather a putative class member.  However, because the company was not an “unaware, absent class member American Pipe was designed to protect” the Third Circuit held its claim was also time-barred.  The Court noted that Weitzner was the sole shareholder in Ari Weitzner M.D. P.C., and as a result the company had actual notice of the pending state court action and the denial of class certification.  Accordingly, tolling the company’s claim would “result in an abuse of American Pipe.”

The Third Circuit’s application of American Pipe in Weitzner v. Sanofi Pasteur, Inc. makes clear that a named plaintiff from a putative class action may not later pursue a time-barred individual claim based upon the same conduct.  The holding also stands for the proposition that a company that is owned and controlled by a named plaintiff in a putative class action may not take advantage of tolling the statute of limitations for a claim based upon the same conduct at issue in its owner’s original suit.

A United States district court in Illinois recently granted a non-resident defendant’s motion to strike the class definition in a putative nationwide TCPA class action, pursuant to Bristol-Meyers Squibb, broadly holding that due process “bars nationwide class actions in fora where the defendant is not subject to general jurisdiction.”  The case is Mussat v. IQVIA Inc., Case No. 17-cv-8841 (N.D. Illinois), and a copy of the order can be accessed here.     

This case joins the growing list of district courts that continue to wrestle with the question of whether they can exercise personal jurisdiction over a non-resident defendant with respect to the claims of out-of-state putative class members.  In Bristol-Meyers – a mass tort action, not a class action – the Supreme Court determined that exercise of personal jurisdiction over claims asserted by non-residents violated the due process clause of the Fourteenth Amendment.  

Following the trend in the Northern District of Illinois, the Mussat court extended the Bristol-Meyers reasoning to the consumer class action context.  Specifically, the case involved an Illinois-resident plaintiff, Florence Mussat, M.D., S.C., who allegedly received two unsolicited advertisements via fax in Illinois from the out–of–state defendant.  Mussat sought to represent the claims of nonresident and unnamed putative class members to whom IQVIA Inc. allegedly sent faxes outside of Illinois.  IQVIA moved to strike the class definition, arguing that the Court lacked personal jurisdiction over it with respect to the unnamed putative class members who had no connection with Illinois.  IQVIA argued that because those individuals did not receive the alleged faxes in Illinois, their claims did not relate to IQVIA’s contacts with Illinois, and the Court lacked specific jurisdiction over it. 

The Court agreed with IQVIA, explaining that there was no reason to distinguish between class actions and mass torts under the Bristol-Meyers due process analysis.  The Court stated that it was following the Supreme Court’s lead in Bristol-Meyers and that due process, as an instrument of interstate federalism, requires a connection between the forum and the specific claims at issue.  Filing a class action under Rule 23 does not change the scope of personal jurisdiction.  According to the Court, the exercise of specific jurisdiction over nonresidents’ claims, with respect to faxes received outside of Illinois, would violate IQVIA’s due process rights because the absent class members’ claims do not relate to the corporation’s contacts with the forum.  Therefore, the Court struck the class definition to the extent it purported to assert claims on behalf of nonresidents.   

After the decision was issued, Mussat filed a motion for certification of interlocutory appeal, which will be fully briefed in mid-December.  Troutman Sanders will continue to monitor this case, as well as how district courts, more broadly, continue to apply Bristol-Meyers in the class action context.

 

Last month, Troutman Sanders reported on the proposed TRACED Act which would instruct the Federal Communications Commission to engage in rulemaking to protect consumers from receiving unwanted calls and text messages from unauthenticated phone numbers.  FCC Chairman Ajit Pai tweeted his approval for the bill, but the FCC is not waiting on Congress to fight robocalls.  On November 21, it released its final report and order on creating a reassigned numbers database.

According to the FCC’s press release, the final draft of the report and order would create a comprehensive database to enable callers to verify whether a telephone number has been permanently disconnected, and is therefore eligible for reassignment, before calling that number, thereby helping to protect consumers with reassigned numbers from receiving unwanted robocalls.

More specifically, this proposal changes the existing federal regulatory scheme by:

  • Establishing a single, comprehensive reassigned numbers database that will enable callers to verify whether a telephone number has been permanently disconnected, and is therefore eligible for reassignment, before calling that number;
  • Establishing a minimum aging period of 45 days before permanently disconnected telephone numbers can be reassigned;
  • Requiring that voice providers that receive North American Numbering Plan numbers and the Toll Free Numbering Administrator report on a monthly basis information regarding permanently disconnected numbers; and
  • Selecting an independent third-party administrator, using a competitive bidding process, to manage the reassigned numbers database.

Pai announced the items tentatively included on the agenda for the December Open Commission Meeting scheduled for Wednesday, December 12. Considering that robocalls are the number one basis of complaints filed with the FCC and the speed in which the issue has been addressed, it will come as no surprise if the proposal is passed at the meeting.

Troutman Sanders will continue to monitor this and related FCC’s rulemaking decisions.

In Roark v. Credit One Bank, N.A., 2018 U.S. Dist. LEXIS 193252 (D. Minn. Nov. 13, 2018), the District of Minnesota added to the changing landscape for claims under the TCPA since the D.C. Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).  In addition to adding its voice to the debate over what type of equipment qualifies as an automatic telephone dialing system (“ATDS”) under the statute, the Court granted summary judgment to the defendant based on consent to receive calls given by one of its customers – the customer to whom the telephone number at issue had belonged before it was reassigned to the plaintiff.

The case arose when Credit One attempted to contact one of its customers at a telephone number he provided.  But unbeknownst to the bank, the number had been reassigned and the calls were being made to Stewart Roark’s cell phone.  Roark brought a claim alleging that the calls were made without his prior express consent and thus violated the TCPA.

The Court first considered whether the calls were made using an ATDS.  The parties agreed that the system used was a “predictive dialer” that could dial automatically from a given list of telephone numbers.  However, the Court rejected Roark’s reliance on a recent Ninth Circuit decision holding that any system that has the capacity to store numbers qualifies as an ATDS.[1]  Rather, in granting summary judgement in favor of Credit One, it followed rulings from the Second and Third circuits in determining that a telephone system only qualifies as an ATDS if it has the present capacity to generate random or sequential numbers to call.[2]

Moreover, in addition to finding that there was no evidence that Credit One used an ATDS, the Court determined that calls in which prerecorded voice messages were left on Roark’s phone did not violate the TCPA because the previous subscriber to his telephone number had consented to receiving such calls.  Before the rule was vacated by the D.C. Circuit in ACA Int’l, the FCC had only allowed for a one-call “safe harbor” in TCPA claims involving wrong numbers.  A caller would face liability after the first call, even if it did not know that the number it was dialing had been reassigned.  Here, in the first such case since ACA Int’l, the Court applied the new standard and considered the reasonableness of the caller’s reliance on the consent provided by the previous holder of a telephone number.  Because the evidence showed that Credit One had no reason to know that the number had been reassigned, the Court determined that it was reasonable for the bank to rely on the consent given by its customer and granted summary judgment in its favor.

Although it is a positive development, the District Court’s ruling is unlikely to be the final word in TCPA wrong number cases.  We will continue to monitor this evolving area of the law and report on new developments as they emerge.

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[1]  Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018).

[2]  King v. Time Warner Cable Inc., 894 F.3d 473, 481 (2nd Cir. 2018); Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3rd Cir. 2018).

On November 20, the Middle District of Florida largely allowed a putative Telephone Consumer Protection Act class action against the Tampa Bay Rays to continue, granting in part and denying in part the baseball team’s motion to dismiss plaintiff Chad Fernandez’s complaint. 

Fernandez’s TCPA class claims are premised on text messages allegedly sent to him via an automatic telephone dialing system (“ATDS”) without his prior express consent.  Initially filed on September 11, 2018, the lawsuit asserted claims for both negligent and willful violations of the TCPA premised on the Rays’ sending of four texts to Fernandez related to Opening Day and other various promotions.  The text messages included announcements such as “Today only, purchase $12–lower level tix for STAR WARS Night on Sat. 5/25 when the Rays host the O’s at 4:10 pm … .  Text STOP to cancel.”  Fernandez brought his claims on behalf of “[a]ll persons within the United States who received an SMS text message, sent by or on behalf of Defendant or an affiliate, subsidiary, or agent of Defendant from the shortcode telephone number 420-86.”

The Rays moved to dismiss Fernandez’s complaint on multiple grounds.  First, the team alleged that Fernandez provided prior express consent to text his cell number when he subscribed to the “Rays Alerts” program in March 2018 and could have easily canceled the subscription at any time.  Judge Scriven didn’t swing at the Rays’ consent curveball, however, holding that “at this stage in the proceedings, the Court must accept Plaintiff’s allegations that he did not consent to such receipt as true.” 

Second, the Rays also moved to dismiss based on Fernandez’s ability to bring the case as a class action.  Arguing that there are no grounds to certify a class, the Rays stated that “not one shred” of evidence was sufficiently alleged to establish that anyone in the U.S. received one of the texts at issue without subscribing.  Once again, however, the Court balked at the Rays’ argument, holding that it was premature to challenge Fernandez’s ability to bring a class action at the responsive pleading stage. 

The Rays avoided a shut out on their motion, however, as the Court did agree with the team that Fernandez’s proposed class definition was overly broad.  Accordingly, Judge Scriven directed Fernandez to narrow the class definition to those individuals who did not provide prior express written consent for the Rays to text them. 

The decision, Fernandez v. Tampa Bay Rays Baseball Ltd., No 8:18-cv-02251 (M.D. Fla.  Nov. 20, 2018), is one of many recent TCPA decisions emanating from the Eleventh Circuit.  It remains to be seen if this case will make it to the World Series of TCPA decisions.

 

Early this month, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), the district court declined to rule that pharmacy prescription reminder calls come within the statutory emergency purposes exception to Telephone Consumer Protection Act restrictions, causing some uncertainty as to whether health care notifications may be sent via text message or automated reminder calls. The decision is already being criticized for its failure to account for the FCC’s prior acknowledgement that calls may be excepted from TCPA protection as calls made for emergency purposes even if those calls are not subject to the FCC’s 2015 exemption that covers certain “calls for which there is an exigency that have a healthcare treatment purpose.”

In Smith, a Rite Aid pharmacy placed prerecorded prescription reminders to consumer Ginger Smith. The calls were intended to alert customers to the status of their prescriptions, but the calls went to Smith, the third-party plaintiff, by mistake (the opinion alludes to the fact that the number was either re-assigned or transcribed erroneously). The slip opinion notes that Smith alleged that she received multiple calls per day/week on her cell phone without her consent.  She claimed that the calls caused her “severe emotional distress” but she did not allege that she ever notified Rite Aid that she was receiving the calls by mistake.  Rite Aid moved to dismiss the complaint, arguing that the calls were exempted from TCPA liability under both the FCC’s 2015 exemption for exigent health care calls and that the calls were excepted from TCPA liability because of the statute’s exception for calls made for “emergency purposes.”

Rite Aid’s reliance on the FCC’s 2015 exemption was rejected by the Court. In relying on In the Matter of the Rules and Regulations Interpreting the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031-32, 2015 WL 4387780, at *49-50 (2015), it ruled that the 2015 exemption covers “calls for which there is an exigency that have a healthcare treatment purpose” and specifically includes “prescription notifications,” but it exempts only one call per day and a maximum of three per week, and it also requires that the calls include an easy way for the caller to opt out of future calls. The 2015 exemption further requires that opt-out requests be honored “immediately.” Here, Smith alleged that she received multiple calls per day and that the calls did not include a way for her to opt out of or stop the calls. Rite Aid’s counsel conceded during oral argument that the 2015 exemption did not apply.

The Court declined to rule that “prescription notice calls are necessarily shielded from TCPA liability by the emergency purposes exception” because the “face of the complaint” did not indicate that the intended recipient of the calls “would suffer death or serious injury if she did not receive the prescription medication.” A “death or serious injury” standard is more stringent than the FCC’s broad definition of “emergency purposes,” which the FCC has defined as applying to “calls made necessary in any situation affecting the health and safety of consumers.” See 47 C.F.R. § 64.1200(f)(4). The Court did not acknowledge the broad wording of the “emergency purposes” definition, seemingly rejecting the statutory emergency purposes exception in this case because of Rite Aid’s failure to satisfy the specific requirements of the FCC’s 2015 exemption.

Some are criticizing the decision as an error that fails to account for the FCC’s express recognition that calls may be protected by the emergency purposes exception even if the calls do not satisfy the requirements of the 2015 exemption.

To be sure, in a brief filed in the ACA International proceedings, the FCC disputed Rite Aid’s argument that the 2015 exemption was arbitrary and capricious because it imposed conditions not contemplated by Congress when it created the emergency purposes exception. The FCC argued that to the extent a call falls outside the 2015 exemption but within the emergency purposes exception, “parties can rely on the emergency-purposes exception on a case-by-case basis.” Brief for Respondents at 72, ACA Int’l v. FCC, No. 15-1211, (D.C. Cir., Jan. 15, 2016). The Smith court considered the FCC’s position and “interpret[ed] this to mean that a party cannot rely on the emergency purpose exception for calls, such as those in this case, that fit under the exigent healthcare call exception.” Slip Op. n. 4. Yet, some find this odd because the Smith court confusingly ruled that the calls here did not fit under the exigent healthcare call exception—meaning that these are the very types of calls that could qualify for the emergency purposes exception.

Perhaps the Court would have reached a different conclusion on summary judgment rather than on a motion to dismiss, but the possible implications of the Court’s ruling that prescription calls are “emergency purposes” calls only if they satisfy all the requirements of the separate 2015 exemption are cause for concern. Because of the limitations of the 2015 exemption, this ruling, if taken at its word and applied elsewhere, could mean that:

  • Prescription calls cannot come within the emergency purposes exception if the patient has a phone plan with a limited number of minutes or texts, regardless of how dire the patient’s medical circumstances or how critical it may be for the patient to stay on her medications.
  • Prescription notification calls beyond one call per day and three calls per week cannot be emergency purposes calls, regardless of whether there is a medical reason for more frequent calls.
  • A call that is not “concise” generally could not qualify as an emergency notification, even if the patient’s medical condition required a longer call.

Critics opine that it is likely that the Smith court did not fully consider such scenarios when coming to its ruling.

You may recall that in January, a district court declined to extend the emergency purposes exception to Rite Aid’s prescription reminder calls in Coleman v. Rite Aid of Ga., Inc., 284 F. Supp. 3d 1343. In the Coleman case, though, the Court’s decision was based in large part on the fact that the plaintiff alleged that he “told Defendant’s pharmacy employee that the wrong person was being called,” “told the Defendant’s pharmacy employee that he did not know the person to whom the messages were directed,” and “requested Defendant stop the calls to his cellular phone.”  Because Rite Aid was informed that Coleman no longer wished to receive calls, the Court determined that they could not have been made for emergency purposes, distinguishing the calls to Coleman from those where the pharmacy thought they were calling a patient or customer, such as was found in Roberts v. Medco Health Solutions, No. 4:15-cv-1368-CDP, 2016 WL 3997071 (E.D. Mo. July 26, 2016).

For pharmacies especially, the Smith ruling creates uncertainties, but some comfort can be found in the cases that have recognized that prescription reminder calls are protected by the emergency purposes exception as calls “affecting the health and safety of consumers,” including Roberts and Lindenbaum v. CVS Health Corp., No. 1:17-CV-1863, 2018 WL 501307 (N.D. Ohio Jan. 22, 2018).

On November 20, Federal Communications Commission Chairman Ajit Pai proposed the implementation of a reassigned numbers database and a declaration that wireless providers are authorized to take measures to stop unwanted text messaging through use of autodialed text messaging (“robotext”)-blocking, anti-spoofing measures, and other anti-spam features. 

Calls to reassigned numbers can be a significant problem for legitimate businesses making calls for which they have prior consent and for consumers receiving unwanted messages.  To combat this problem, the draft order would establish a single database of reassigned numbers based on information provided by phone companies that obtain North American Numbering Plan U.S. geographic numbers. The database should help legitimate callers direct their calls to parties who asked for them rather than individuals who have subsequently obtained those reassigned numbers. 

As an increasing number of Americans rely on text messaging as a communications service, the draft Declaratory Ruling on text messaging would formally rule that text-messaging services are information services, not telecommunications services. This would allow carriers to continue using robotext-blocking and anti-spoofing measures to protect consumers from unwanted text messages. 

In the FCC press release announcing the proposal, Pai stated, “Combatting robocalls is our top consumer protection priority, and these proposals are a significant step forward in that effort.  Today, I am calling on the FCC to take additional measures to combat these calls and also to prevent a flood of spam robotexts from clogging Americans’ phones.” 

The FCC will consider these items at its Open Commission meeting on December 12.  

Troutman Sanders will continue to monitor the movement of these proposals and will report on any further developments.

 

Does minor human involvement disqualify a telephony device as an automatic telephone dialing system, or “ATDS,” for purposes of liability under the Telephone Consumer Protection Act? In a significant decision, a District Court in the First Circuit held that it does.

In Hatuey v. IC System, Inc., plaintiff Josie Hatuey alleged that ICS violated the TCPA and Fair Debt Collection Practices Act when it continued to place calls to his cellular phone using an ATDS despite his having informed ICS that he was not the debtor or intended recipient of the call.

Hatuey obtained the cell phone through his place of employment and received calls from ICS, which was intending to contact Brian O’Neil. Hatuey claimed that ICS violated Section 1692d of the FDCPA because the calls were intended to “annoy, abuse or harass” him.  The number of calls was in dispute, and despite claiming that ICS contacted him multiple times per week, Hatuey could not offer any proof to substantiate the claim. In granting summary judgment in favor of ICS, Judge Douglas Woodlock held, “Even drawing all reasonable inferences in favor of Mr. Hatuey, this volume and pattern of phone calls does not raise the inference of an intent to harass. It only suggested that ICS sought to get in touch with the correct debtor.”

Hatuey also claimed that ICS violated the TCPA because the calls were placed to his cellular phone using an ATDS and he had not provided consent for such calls. The Hatuey Court granted summary judgment in favor of ICS, holding that what distinguishes an ATDS is the capacity of the system to dial telephone numbers from a list without human intervention: “Even if I were to accept a broad reading of the FCC’s definition of an ATDS as a system which may draw phone numbers from a database, rather than only through a random or sequential number generator, there would be no genuine issue of material fact on Mr. Hatuey’s TCPA claim. Both Mr. Hatuey and ICS agree that the relevant calls were placed using a system known as LiveVox HCI, and that this system requires a human ‘clicker agent’ who must manually click a button to place a call. This alone disqualifies the LiveVox HCI system as an ATDS under the TCPA,” Judge Woodlock wrote.

TCPA and FDCPA cases around the country are replete with examples of plaintiffs seeking to recover damages from debt collectors for calls placed to “recycled” numbers.  The Hatuey decision serves as an example that such cases can be successfully defended.