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TCPA Tracker – December 2021 – Media, Telecoms, IT, Entertainment

Recent news

FCC takes additional steps to stem illegal robocalls

One of the main items on the FCC’s 2021 agenda has been its efforts to tackle illegal robocalls through the implementation of new technologies and new obligations. In December 2021, the FCC took several steps to advance these goals. First, on December 10, the FCC released a Fourth report and order in its call authentication dossier which shortens the time frame for some providers to implement the STIR / SHAKEN anti-robocall call authentication framework. Specifically, the FCC shortened by one year, until June 30, 2022, the requirement to implement STIR / SHAKEN for small, non-facilities-based VoIP providers. In addition, he gave his Enforcement Office the power to require the implementation of STIR / SHAKEN within 90 days for entities known to be the originator of illegal automated calls, subject to verification by the Bureau. Second, as it is required to do annually under the TRACED Act, the Wireline Competition Bureau has assessed – and maintained unchanged – its extensions of the STIR / SHAKEN implementation deadline. Specifically, the Small Provider Extension, the Extension for Entities Unable to Obtain an SPC Token, and the Extension for Services subject to a Section 214 Opt-Out request remain in place. . Finally, on December 30, the FCC published its annual report under the TRACED law on the implementation of the provisions of the law against robotic calls. The annual report provides information on the number of complaints received by the Commission, its coordination with various federal and state law enforcement authorities and the operations of the Industry Traceback Group in the fight against illegal robocalls.

Tracking FCC petitions

Kelley Drye’s Communications Group is preparing a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA.

Number of pending petitions

  • 29 pending petitions
  • 1 request for revision of the rules for implementing the exemption from the recovery of State debts
  • 1 request for review of the decision to deny an exemption request from the prior express consent requirement of the TCPA for “mortgage service calls”
  • 1 request for re-examination of the exemption of 14/10/16 from the rule of prior express written consent granted to 7 applicants

New petitions filed

  • No new petition filed in December.

Comments coming soon

Published decisions

Click here to see the full follow-up on FCC petitions.

Cases to be noted

Court grants summary judgment motion for informative defendant who faxes

A Missouri district judge recently ruled that a fax sent to thousands of doctors and health care providers did not violate the TCPA because the fax was not “of a commercial nature.” The plaintiff’s health care provider brought an action alleging that the defendants sent an unsolicited fax advertisement “to over 55,000 physicians and health care providers.” The fax informed suppliers of “new supply limits on coverage for
[prescriptions] for [certain patients] covered by plans sponsored by [Defendant’s] clients. The question before the summary judgment court was whether “a reasonable jury could find that the defendants’ unsolicited fax constitutes” advertising “within the meaning of the TCPA. The court ruled that the fax in question was not an “advertisement” since it was not “of a commercial nature”, but rather “informative”.

The court confirmed that the “TCPA prohibits the use of fax machines to send” unsolicited advertisements. ” goods or services which are transmitted to any person without the prior invitation or express permission of that person, in writing or otherwise. “The question of”[w]whether a fax constitutes an “advertisement” under
[the TCPA] is a question that the courts can decide in law.

The Court considered the decision of the Sixth Circuit Sandusky Wellness Center, LLC, v Medco Health Solutions, Inc. orientation decision. the Sandusky The Court ruled that “a fax from a drug benefit manager … to a health care provider … was not ‘unsolicited advertising’ under the TCPA” since the faxes in it medication cases for the doctor’s own patients who were covered by the accused’s clients’ medicare plan. The Court drew a factual parallel with the present case, since the plaintiff here was also a prescribing physician, and the fax “simply provides … information” relating to insurance coverage for certain drugs.

The Court also considered the language of the fax, finding that the fax had “not advertised anything for sale”, but instead informed the plaintiff of the “new supply limit of the defendants and how this might affect the plaintiff. in his professional practice “.

Further, the Court rejected considerations as to whether the defendants “would obtain an indirect or ancillary business benefit” from sending the fax, finding that “the question under the TCPA is whether the content of the message is business, not what predictions can be made about future economic benefits. The court went on to observe that the “link” between the defendant “receiving any commercial advantage from sending this type of information to prescribing physicians is too tenuous for the court to speculate and the record is devoid of any evidence. opposite”.

In granting the defendants’ motion for summary judgment, the Court concluded that the fax in issue was not an “advertisement” within the meaning of 47 USC § 227 (a) (5) “because no reasonable jury failed. could conclude from the record that the fax was promoting the availability or quality of
[Defendants’] services, direct or indirect.

BPP v CaremarkPCS Health, LLC, No. 4: 20-cv-126-MTS, 2021 WL 5195785 (ED Mo. November 9, 2021).

California District Court Denies TCPA Class Certification

A California district court denied certification of a TCPA class when the plaintiff failed to prove that he or she met the number and community requirements of rule 23 (a), and further that the questions de jure or de facto communes predominated over individual questions. The plaintiff’s inability to establish that the group should be certified was largely due to his inability to gather the evidence required to succeed in his claims upon discovery.

Plaintiff sued defendant Yelp over calls he allegedly received from the social media company on his home phone. Given that Yelp is a website that exists solely to host business profiles and serve certain advertising needs, the Court first noted that “the TCPA exemptions for calls to numbers that are linked to a existing business relationship, or who have otherwise given their consent to be called upon, are critical factors in determining whether [Defendant] can [be] responsible as [Plaintiff]alleges, and whether it is possible to answer the question of responsibility at the class level. “

The Court found that the plaintiff had failed to make the basic discovery necessary to identify the appeals at issue or the alleged class members. To justify the certification of the group, the applicant was required to propose “a method which would reasonably take into account the TCPA exemptions” without requiring “individualized surveys for each putative member of the group”. The requester did not request the required information during discovery. By the time the discovery was closed, the plaintiff was left with “only a few months of call tapes” which the court said was “well below the multi-year liability period alleged for the proposed group “.

Regarding numbering, the plaintiff argued that the defendant “had to make millions of calls each year to numbers in the do not call register” because of certain statistics. The plaintiff pointed to a 2013 acknowledgment by the defendant that “about 81% of its lists had exact phone numbers, which [Plaintiff] means that about 19% of the numbers were not correctly on
[Defendant’s] call lists, ”combined with the fact that“ around 71% of phone lines ”are on the do-not-call register, saying that was enough to“ infer ”that millions of calls were made each year. The Court concluded that it was “not enough that [Defendant] The plaintiff attempted to enlist an expert witness to help him identify the members of the group, but the court noted that any expert would have “virtually no data. “. . Consequently [Plaintiff’s
failure] continue the discovery. “

The Court also found that the plaintiff had failed to establish community and the predominance of questions of fact or law common to the group. Specifically, Yelp had identified evidence of an established business relationship with some putative members of the group. So, assuming that the plaintiff had the data required to identify the members of the group, the court concluded that it should conduct individualized investigations to determine whether the defendant had a valid defense against each putative member of the group.

Consequently, the Court dismissed the plaintiff’s request for collective certification. The applicant was allowed to proceed solely on the basis of his individual request. The plaintiff filed his notice of appeal with the Ninth Circuit.

Sapan v. Yelp, Inc., No. 3: 17-cv-03240-JD, 2021 WL 5302908 (ND Cal. November 15, 2021), appeal filed, n ° 21-80119, (9th Cir. 29 November 2021).

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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