Last week, Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina handed down a decision of first impression for that court: the FCC’s do-not-call rule, 47 C.F.R. § 64.1200(d), creates a private right of action for telephone subscribers who receive calls in violation of that rule’s “minimum standards.” The decision widens the growing split among federal courts as to which provision of the TCPA gives life to the DNC rule.On its motion to dismiss, the defendant argued that the plaintiff could not maintain an action for alleged violations of § 64.1200(d) because the FCC promulgated that rule under 47 U.S.C. § 227(d), which does not create a private right of action for violations of implementing regulations. Fischman v. MediaStratX, LLC, No. 2:20-CV-83-D, 2021 WL 3559639, at *4 (E.D.N.C. Aug. 10, 2021).

Statutory Prohibition and the Facebook RulingAs readers of this blog are aware, Section 227(b)(1)(A)(iii) of the TCPA generally prohibits a caller from “mak[ing] any call” to a cell phone “using” an ATDS, unless the called party has provided prior express consent or the call is made for emergency purposes. 47 U.S.C. § 227(b)(1)(A). Under Section 227(a)(1), an ATDS is “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.”

Defendant moved for summary judgment, arguing that it did not make the call, and, as such, was not liable for the alleged TCPA violation. Concluding that the TCPA authorizes two private causes set forth in: (1) 47 U.S.C. § 227(c)(5); and (2) 47 U.S.C. § 227(b)(3), the court held that Plaintiff could not maintain a claim under Section 227(c)(5) because it was undisputed that she only received one call allegedly placed on behalf of Defendant. Section 227(c)(5) provides a private right of action to those who have “received more than one telephone call within any 12–month period by or on behalf of the same entity in violation of the regulations prescribed under [subsection (c) ].”

The Court did provide some guidance, however, on these subjects for future rulemaking by the FCC. At the same time, the Court upheld the FCC’s (1) ruling requiring callers (that is, the entities placing the calls alleged to violate the TCPA) to honor all “reasonable” attempts by telephone subscribers to revoke previously-provided consent, and (2) exemption of certain healthcare-related calls from the provisions of the TCPA.Background — the TCPA and the FCC’s 2015 Order In relevant part, the TCPA, 47 U.S.C. § 227, [2] regulates the use of pre-recorded voice messages and ATDS equipment to make calls under certain circumstances. [3] The term ATDS is defined by the TCPA as any equipment having the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator” and “to dial such numbers.”

He told the callers that he did not wish to receive any more unsolicited calls, but he continued to receive them. “Thus, Fischman has plausibly alleged a cognizable constitutional injury sufficient to support Article III standing,” the court said.Turning to the question of Fischman’s claims under the FCC regulations, Judge Dever explained that the FCC did not state under which subsection of 47 U.S.C. § 227 it promulgated 47 C.F.R. § 64.1200(d). Congress explicitly created a private right of action for regulations promulgated under Section 227(c) of the TCPA, the court said, but did not explicitly or implicitly create a private right of action for violations of what some have called the “technical” or “procedural” regulations promulgated under Section 227(d) of the TCPA, which encompass the internal DNC requirements (e.g., that companies have an internal policy in place, maintain internal DNC lists, train their employees, etc.).Courts across the country are split on the issue.

[1] This opinion found that an FCC rule issued in 2006 (the “2006 Order”) requiring a sender to include an opt-out notice on faxes that were solicited by the recipient was unlawful and vacated the FCC order implementing the rule. [2]Background The TCPA, enacted into law in 1991 and codified at 47 U.S.C. § 227, [3] prohibits the use of a fax machine to send an “unsolicited advertisement” [4] under certain circumstances. An “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.”

The FCC further stated that individual retroactive waivers may be extended to similarly situated parties that seek waiver requests prior to April 30, 2015.Background The TCPA, codified at 47 U.S.C. § 227, prohibits the use of a fax machine to send an “unsolicited advertisement”[2]under certain circumstances.An “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.”

patients regarding obtaining government or charitable assistance for medical bills.The plaintiff contacted defendant Jackson-Madison County General Hospital (Jackson Hospital) and told the defendant’s representatives that the third-party patient could not be reached at the plaintiff’s number. The representatives stated that they would remove the plaintiff’s phone number. In June 2021, the plaintiff received a live call, and after informing the representative that the third-party patient could not be reached at that number, the representative stated that the plaintiff’s number would be removed and he should not receive any further calls.Later that same month, the third-party patient again visited Dyersburg Hospital, and again the plaintiff’s phone number was mistakenly entered. Following this, the plaintiff received recorded messages for several weeks, finally ending the week of September 20, 2021. On October 1, 2021, the plaintiff filed suit alleging violations of the TCPA pursuant to 47 U.S.C. §§ 227(b) and (c), harassment under Kentucky Revised Statute § 525.070, and invasion of privacy under Tennessee common law. The defendants filed motions for partial summary judgment as to the § 227(c) and state law claims, and the plaintiff filed a motion for partial summary judgment as to his § 277(b) claim.A magistrate judge filed a report and recommendation, recommending the court grant the defendants’ motions for summary judgment on the § 227(c) and state law claims and deny the plaintiff’s motion for summary judgment as to the § 227(b) claim. The plaintiff timely filed objections to the report and recommendation and the defendants responded. In considering the objections, the court addressed only the § 227(b) claim and the Kentucky § 525.070 claim.The plaintiff contended that he was entitled to summary judgment on his § 227(b) claim because there was no genuine issue of material fact that Firstsource was an agent of Jackson Hospital which used prerecorded messages to call the plaintiff wit

In Loyhayem v. Fraser Fin. & Ins. Servs., Inc., 7 F.4th 1232 (9th Cir. 2021), the U.S. Court of Appeals for the Ninth Circuit held that the TCPA applies not only to “telemarketing” or “advertising” calls, but also to job-recruitment robocalls. In Fischman v. MediaStratX, LLC, No. 20-CV-83, 2021 WL 3559639 (E.D.N.C. Aug. 10, 2021), the Eastern District of North Carolina entered the debate on whether 47 C.F.R. §64.1200(d) contains a private right of action by holding that it does.Lenders should be aware of these developments because Loyhayem solidifies a broader interpretation of what constitutes the use of autodialer technology and Fischman moves the needle on the weight of authority supporting an interpretation of the TCPA to require private parties to maintain policies and procedures regarding a private do not call list.At issue in Loyhayem is the scope of 47 U.S.C. §227(b)(1)(A)(iii)’s prohibition on making calls using an autodialer or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service. The plaintiff alleged that he received a “job recruitment call” on his cell phone that was made using both an autodialer and an artificial or prerecorded voice.

See Cunningham v. Britereal Mgmt., No. 4:20-cv-144-SDJ-KPJ, (E.D. Tex. Nov. 20, 2020).The plaintiff in this case, alleged that he received at least 25 calls and multiple text messages on his cell phone seeking to sell a supplement named “Bio Virexagen.” Because he had not consented to receiving the calls and his telephone number is allegedly on the national do-not-call list, Cunningham asserted claims for violation of the TCPA under 47 U.S.C. § 227(c)(5).In enacting § 227(c), Congress directed the FCC to promulgate regulations aimed at the establishment and operation of a national database of telephone numbers of residential subscribers who object to receiving telephone solicitations. Congress also permitted the FCC to regulate telephone solicitations to any number in the database.