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The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, there are relatively few Circuit Court of Appeals decisions regarding the TCPA. In August of 2013, however, both the Third and Seventh Circuits issued TCPA decisions—one involving the revocation of prior express consent and the other involving cy pres awards in TCPA class actions.…
Continue Reading Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using automated systems or artificial or pre-recorded voice unless the consumer gives “prior express consent.” The TCPA imposes statutory penalties of $500 per negligent violation, and up to $1,500 per knowing or willful violation. In class actions, the potential liability usually extends back four years prior to the filing of the complaint. The numbers can get very high, very quickly—for example, at least $500,000 for 1000 calls; at least $5 million for 10,000 calls, etc. Though the TCPA does not authorize attorneys’ fees itself, plaintiffs usually recover them in class actions.…
Continue Reading New FCC Interpretation Of “Express Consent” To Increase TCPA Class Action Liability

In Chesbro v. Best Buy Stores, LP, No. 11-35784, 2012 WL 4902839 (9th Cir. Oct. 17, 2012), the Ninth Circuit reversed the Western District of Washington’s grant of summary judgment in favor of Best Buy Stores, LP (“Best Buy”) on claims that Best Buy placed automated telephone calls to plaintiff Michael Chesbro’s home in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 and Washington statutes. The TCPA prohibits “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” However, the FCC has exempted automated calls that do not adversely affect the consumer’s privacy rights and do not include any “unsolicited advertisement,” pursuant to 47 U.S.C. § 227(b)(2)(B)(ii) and 47 C.F.R. § 64.1200(a)(2)(iii). An “unsolicited advertisement” is defined as “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.” 47 U.S.C. § 227(a)(5). Here, the Ninth Circuit rejected Best Buy’s argument that its automated calls to Chesbro were not “unsolicited advertisement[s],” holding that such calls need not explicitly mention a good, product, or service, but can nonetheless violate the TCPA if they encourage the listener to make future purchases.…
Continue Reading The Ninth Circuit Holds That The TCPA Prohibits Automated Calls Even When They Do Not Refer To Any Specific Good Or Service