So I’m a big fan of creative arguments. I have more first-in-the-nation TCPA wins than any other human being alive and I am always looking for the next GREAT angle, even if someone else dreams it up. (For instance that Rombough win earlier this year was just brilliant.)
But some arguments are just destined for failure and smack of desperation, if not disingenuity. Not such a big fan of those.
Take the arguments Porch made to the Ninth Circuit Court of Appeals in Chennette v. Porch, 2022 WL 6884084 (Oct. 12, 2022 9th Cir.).
In Chennette, Porch–allegedly–made cold call solicitations to home improvement business owners in an effort to sell them leads for potential customers. As the calls were made to cell phones, the TCPA’s rules apply rather directly. Those rules are: i) no calls allowed using regulated technology; ii) no calls to numbers on the national DNC list, unless the numbers are not residential.
To defend itself, Porch argued that by listing their numbers in publicly available databases these business owners had essentially consented to receive calls.
Now, for a lay person that may not sound like a crazy argument. I mean, a public number is public expressly to receive calls. But in the context of marketing calls, anyone that practices in TCPAWorld knows that express WRITTEN consent is required to permit these types of calls (again if made using regulated technology or to a residential cell phone number.) Merely holding out a number to the public can hardly be viewed as any form of express consent for TCPA purposes, and it is certainly not the written consent that is required.
With the consent argument gong nowhere, Porch also argued that the named Plaintiff and class members lacked various kinds of standing to sue–again relying on the fact that the numbers called were listed publicly. The Ninth Circuit had little trouble rejecting each of these arguments:
By posting their cell phone numbers on Yelp or Facebook, plaintiffs advertised their businesses to clients who needed home improvement services. They did not expressly consent to receive text messages from GoSmith, which sought to sell information about potential clients.
Most basically, the Court found that the business owners held out their numbers publicly so that they could receive calls FROM CUSTOMERS, not from companies looking to sell leads to them. So just because the business owners might be potentially interested in the service the caller was calling about, that did not mean that the owners lacked standing to sue.
Now this is actually a closer call than it may seem. The TCPA provides a procedural protection–no calls without consent–as a rough protective of a substantive right–to not receive unwanted calls. Surely some of the call recipients did want the calls–that’s why the campaign was successful–but that does not mean that those who did not want the calls lack standing to sue. So even though the Ninth Circuit rejected the argument as to all class members, that doesn’t mean that some class members do lack standing–and figuring out who is who, should make certification impossible (that would be my argument at least.)
As to “prudential” or “statutory” standing the Chennette decision is very damaging. It essentially collapses both analyses into a one liner: “Because the statutory text includes not only “person[s]” but also “entit[ies],” we conclude that all of the plaintiffs have standing to sue under § 227(b) of the TCPA.”
That’s not a terribly satisfying breakdown considering that many courts have examined whether a called party is within the “zone of interest” to be protected by the statute. Porch’s zone of interest argument–that individuals who publicly list their numbers are not within the zone of interest protected by the TCPA–is not a good one. That said, the Court should have at least recognized there are standing limits beyond the mere words of the statute. Its failure to do so is troubling, to say the least. Indeed, the Ninth Circuit may have just ended zone of interest arguments in TCPA cases within its footprint–and that’s catastrophic to the battle against manufactured lawsuits. (This is another reason I hate to see important doctrines raised in dubious cases.)
But I digress.
The Court also considered whether cell phones held out as business numbers may yet be residential numbers for purposes of the DNC rules. Here again the answer went against Porch. The Court held that such numbers could still be residential and that it is up to the jury to determine whether they are or not.
Truthfully, this portion of the ruling was a bit worse than that. The Court held that all cell numbers on the DNC list are presumptively residential. The burden is on the caller to prove that the number is not actually residential. And the creation of this presumption will–again–make it much tougher to defeat the claims of litigators who set up TCPA cases by listing their business numbers on the DNC.
So all in all this is a very painful ruling for TCPAWorld. A true “bad facts make bad law” moment here– seems pretty obvious the Ninth Circuit Court of Appeals wasn’t going to bless a business practice of cold calling people to sell leads (even if those people were business owners.)
From that perspective read narrowly the ruling is no big deal–not too many folks out there cavalier enough to engage in cold call solicitations of this type without scrubbing the DNCR these days. But the broader holdings–destroying prudential standing limits and imposing a burden on callers to overcome a “presumption” of residential status–are really disastrous for TCPAWorld.
Happy to discuss the impact of these rulings.