So it is really unbelievable that the TCPA SUMMIT is NEXT WEEK already.
One of the amazing things about the Summit and its two day format is that I can dive into topics I NEVER have time to discuss in 45 minute or 1 hour sessions that we have at other shows.
For instance, last year I had the opportunity to discuss the rising rash of content-based TCPA claims and where there is a private right of action and where there isn’t. I even made this clever stork slide to guide the discussion:
Setting the stage, the TCPA’s implementing regulations (47 CFR 64.1200) contain two provisions related to the required content of calls– those found at 64.1200(b) and 64.1200(d)(4).
The 64.1200(b) provisions generally require certain disclosures related to the identity of the caller at the outset of a prerecorded call along with a required opt out mechanism for live prerecorded calls and for voicemails.
The 64.1200(d)(4) provisions are more narrow but require a telemarketer to provide a full disclosure of their identity during the course of a call.
Now the CFR is not automatically enforceable. Plaintiffs an only bring suit for violations of these provisions where the TCPA authorizes. And whether authority exists turns on whether the FCC implemented these provisions under either 227(c)–containing a private right of action–or 227(d)–which does not.
Unhelpfully both provisions give the FCC the right to implement regulations. And also unhelpfully the FCC has implemented regs under both provisions WITHOUT SPECIFYING which of the two statutory provisions the regs are implemented pursuant to.
This has–somewhat unbelievably–resulted in litigants an the courts having to fight over what the FCC was thinking when it implemented these provisions.
As with other fights in TCPAWorld, this one remains a bit of a mess. However the courts are MOSTLY aligned that 64.1200(b) was implemented under 227(d). And that, in turn, means there is NO private right action (i.e. you cannot be sued in a TCPA class action for violating those provisions.)
The latest court to so hold is Escano v. RCI, LLC, 2022 WL 17251273 (D. N.M. 11/28/2022):
The regulatory provisions in 47 C.F.R. § 64.1200(b) implement a subsection of the TCPA, which mandates that the Federal Communications Commission (FCC) “prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone.” 47 U.S.C. § 227(d)(3). But “[t]his [TCPA] subsection [§ 227(d)] does not create an associated private right of action.” Barrett v. Vivint, Inc., No. 2:19-cv-00568-DBB-CMR, 2020 U.S. Dist. LEXIS 89055, at *13 (D. Utah May 20, 2020) (citing § 227(d)). Therefore, “[the] [t]echnical and procedural standards specific to automated calls [that] are included in § 227(d) and [its] accompanying regulation 47 C.F.R. § 64.1200(b) … do not provide a private right of action or a statutory-damages provision.” Charvat v. NMP, LLC, 656 F.3d 440, 449 (6th Cir. 2011).7
I should caution that many courts go the other way on these issues–especially as to content claims brought under 64.1200(d)(4). There is a long and winding back story as to why that is– if I have time I’ll discuss for summit goers next week!
Happy Tuesday TCPAWorld. 🙂