Telephone Consumer Protection Act Blog | Burr & Forman LLP

Florida District Court Dismisses Class Action Complaint Against Tampa Bay Buccaneers Due Rule 68 Offer Of Judgment

Joshua H. Threadcraft — Thu, 05 Dec 2013 09:00:01 -0500

Jeffrey M. Stein, D.D.S., M.S.D., P.A., et al. v. Buccaneers Limited Partnership, No. 8:13-cv-02136-SDM-AEP (Oct. 24, 2013) Three dentists, a pest control service and two other alleged recipients of unsolicited faxes selling football tickets filed a class action Complaint against the Tampa Buccaneers for allegedly violating the TCPA. Within three days of removing the case to federal court, Defendant made an offer of judgment under Rule 68 to each Plaintiff. Two days later, Defendant moved to dismiss the Complaint, advocating the absence of an Article III "case or controversy ...

FCC Seeks Comment On What Constitutes "Capacity" As The Term Is Used In The TCPA

Joshua H. Threadcraft — Fri, 22 Nov 2013 09:00:02 -0500

The Telephone Consumer Protection Act defines the phrase Automatic Telephone Dialing System (ATDS) as equipment that has the capacity: (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. On November 19, 2013, the FCC issued a public notice seeking comment on a Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking filed by the Professional Association for Customer Engagement (PACE). The Petition seeks a Declaratory Ruling: 1. Clarifying that a dialing system is not an ATDS unless it has ...

Michigan Court Holds Business Owner Individually Liable For TCPA Violation But Denies Request For Treble Damages

Joshua H. Threadcraft — Thu, 14 Nov 2013 09:00:03 -0500

Jackson Five Star Catering, Inc. v. John R. Beason and Tax Connection Worldwide, LLC, No. 10-10010, 2013 WL 5966340 (E.D. Mich. Nov. 8, 2013) Pending before the Court were several motions, including Defendant business owner's motion for summary judgment, contending he could not be held individually liable for unsolicited fax advertisements sent by a third party on behalf of his company. Defendant argued that he could only be held individually liable if Plaintiff pierced the corporate veil. Rejecting this argument, the court noted that though the Sixth Circuit Court of Appeals has ...

Florida District Court Holds Whether Subscriber Or Person Who Answers Call Possesses TCPA Claim Depends On Circumstances

Joshua H. Threadcraft — Thu, 31 Oct 2013 09:00:04 -0400

Cellco Partners v. Plaza Resorts, Inc., No. 12-81238-CIV, 2013 WL 5436553 (S.D. Fla. Sept. 27, 2013) Plaintiff Cellco Partnership d/b/a Verizon Wireless filed a TCPA claim alleging millions of calls were placed to Verizon customers, approximately 27,678 of which were made to cell phones Verizon owns, pays for and provides to employees to conduct Verizon business. The ultimate question presented in the case was who possessed the TCPA cause of action, Verizon or its employee, since the TCPA provides that it is a violation of the statute to make a call without the prior express consent of ...

TCPA Filings Increase 65 Percent Year-To-Date

Joshua H. Threadcraft — Fri, 25 Oct 2013 09:00:05 -0400

The Telephone Consumer Protection Act (TCPA) has increasingly become a target for consumers and their attorneys for suits aimed at collection agencies. TCPA suits in August rose 15.4 percent from July and 72 percent compared to August 2012. Year-to-date, TCPA suits are up 65 percent according to an article published by InsideArm.

Summary of August lawsuits:

There were about 1,118 unique plaintiffs (including multiple plaintiffs in one suit).
Of those plaintiffs, about 373, or (33.4%), had sued under consumer statutes before.
Combined, those plaintiffs have filed about 1,974 ...

FCC Rule Requiring Prior Express Written Consent For Telemarketers Goes Into Effect Today

Joshua H. Threadcraft — Wed, 16 Oct 2013 09:00:06 -0400

The new FCC rule requiring prior express written consent for all: (1) Autodialed or prerecorded telemarketing calls to wireless numbers; and (2) Prerecorded telemarketing calls to residential lines takes effect today. The rule eliminates the "established business relationship" exemption for such calls to residential lines and requires that telemarketers now obtain a written agreement containing the signature of the called party, including a clear and conspicuous disclosure that: 1. The person allows the seller to make telemarketing calls using an automatic telephone ...

Massachusetts District Court Dismisses TCPA Claim, Holding Fax Simply Provided Information About Services Already Available

Joshua H. Threadcraft — Thu, 10 Oct 2013 09:00:07 -0400

Physicians HealthSource, Inc. v. Multiplan Services, Corp., No. 12-11693-GAO, 2013 WL 2599134 (D. Mass. Sept. 18, 2013) According to the Complaint, Plaintiff did not give Defendant permission to send it faxes. The TCPA prohibits unsolicited advertisements sent via facsimile. But advertisements are exempt from the prohibition if: (1) the sender has an established business relationship with the fax recipient; (2) the sender obtained the recipient's fax number through a voluntary disclosure by the recipient; and (3) the unsolicited fax contains language clearly indicating how ...

Eastern District of Kentucky Holds Plaintiff Must Arbitrate TCPA Claims Based On Calls Seeking Debt From Third Party

Joshua H. Threadcraft — Thu, 03 Oct 2013 09:00:08 -0400

Whaley v. T-Mobile, USA, Inc., No. 13-31-DLB-JGW, 2013 WL 5155342 (E.D. Ky. Sept. 12, 2013) Plaintiff opened a cell phone account with Defendant. Terms and conditions of the account included an arbitration provision in bold letters. While Plaintiff was allowed an opportunity to opt out of the arbitration procedures by calling a 1-800 number within 30 days of activating service, he did not exercise this option. According to the Complaint, Defendant later began calling Plaintiff to collect debt from a third party. He filed suit alleging violations of the TCPA and Defendant moved to ...

Alabama District Court Holds System is ATDS if has Present Capacity to Store or Produce and Call Numbers at Time of Call Even if Not Utilized

Joshua H. Threadcraft — Thu, 26 Sep 2013 09:00:09 -0400

Hunt v. 21st Mortgage Corp., No. 2:12-cv-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013) Pending before the court was a Motion to Compel Discovery during which the issue of what constitutes an Automatic Telephone Dialing System (ATDS) was addressed. The court began its analysis noting that the TCPA defines an ATDS as equipment which has the capacity– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. Based on this definition, Plaintiff argued that while Defendant's system could not, in the state ...

Seventh Circuit Affirms Class Action Class Action Holding Fax Was Advertisement

Joshua H. Threadcraft — Fri, 20 Sep 2013 09:00:10 -0400

A class action complaint was filed against Defendant who sent 8,430 faxes to more than 200 people containing business advise. The trial court granted judgment against Defendant in the amount of $4,215,000, which Defendant appealed. Rejecting any argument that a fax recipient must actually print a fax or have otherwise experienced monetary loss to state a claim, the Court stated that the TCPA provides a $500 penalty for annoyance adding that even a recipient who gets the fax on a computer and deletes it without printing experiences some loss; "the value of time necessary to realize that ...