WASTED TIME: Court Patiently Explains to a TCPA Defendant that Claims under 227(b) and 227(c) of the TCPA Are Not the Same Thing

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I’m disheartened.

Just last week I reported on a double-strike out case–one in which five of six arguments made in a motion to dismiss (all of which failed) seemingly should not have been made–at least in the Czar’s opinion (ITCO).

Today I have another double strike out case. But I don’t want to focus on the quantity of arguments rejected by the court–I want to discuss the fundamental difference between 47 USC Section 227(b), on the one hand, and 227(c), on the other.

227(b) governs regulated technology. If you are using an automated telephone dialing system or a prerecorded/artificial voice to make a call you generally have to have express consent of the called party to do so (subject to a bunch of nuance and content-specific exemptions.)

227(c) on the other hand, does not look at whether or not you are using regulated technology. Rather it looks at whether you are making a telephone solicitation–lots of nuance there too–to a residential number on the national DNC list (or–maybe– an internal DNC list under 47 CFR 64.1200(d)).

One critical difference between the two sections is that regulated technology must be used to state a 227(b) violation. But even manually placed calls can violate 227(c). Stated simply: YOU CANNOT COLD CALL RESIDENTIAL NUMBERS ON THE NATIONAL DNC FOR MARKETING PURPOSES EVEN IF YOU ARE DIALING “MANUALLY.” 

Pausing to break that down was definitely my good deed of the day.

Well in Starling v. J Wales Home Solutions LLC, Civil Action No. 4:21-cv-01261-O, 2022 U.S. Dist. LEXIS 71382 (N.D. Tex. April 19, 2022) the Defendant just didn’t get it. It kept arguing to the Court that the calls at issue did not violate 227(c) because an ATDS was not used to make the calls. And the Court just kept on correcting the Defendant–in fairly patient fashion:

Defendant argues that Plaintiff has failed to plead the elements of a claim under 47 U.S.C. § 227(b) because she has not alleged that Defendant used an automatic dialing system. Once again, Defendant misreads Plaintiff’s complaint which “does not assert a claim under 47 U.S.C. 227(b).” Pl.’s Resp. 9, ECF No. 15. Rather, Plaintiff asserts claims under § 227(c), which does not require the use of an automatic dialing system. See Compl. 15-17, ECF No. 1. …

[In connection with it motion to strike] Defendant continues to argue about automatic dialing systems, demonstrating once again that it misapprehends Plaintiff’s complaint. 

When a federal judge is telling a Defendant that it just doesn’t understand the TCPA, that generally doesn’t bode well.

I should note the Defendant also lost arguments pertaining to the established business relationship defense and vicarious liability while the Court also found that a private right of action under Texas Business and Commerce Code. Section 305.053 because–apparently–any valid TCPA claim is also a violation of the Texas statute. All of these arguments might have gone the other way with different briefing (ITCO).

Look, I love you TCPAWorld. But when a party shows a federal court that it just doesn’t understand the TCPA in some fundamental way it is bound to lose arguments that it might have otherwise won. And that means more bad case law for the rest of us that didn’t have to be made. And–again–avoiding avoidable losses by the defense bar is why I created TCPAWorld in the first place.  And it makes me feel like all my hard work is going to waste when I see cases like these.

I’m not trying to be grumpy Czar here, but I do get all melancholy and broody in my Berkeley-esque way when I see cases like this.  You can cheer me back up by sharing TCPAWorld with everyone out there and encourage your counsel–especially if they’re not experienced TCPA defense lawyers–to read it. Again, it is totally free. No barriers to content. And a ton of my followers are defense lawyers at rival firms–but I never out them.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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