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Posts Tagged ‘Federal Communications Commission’

Bipartisan TRACED Act Enhances Penalties for Illegal Robocalls

Posted on: December 7th, 2018

By: Matt Foree

U.S. Senator John Thune (R-S.D.), the chairman of the Senate Committee on Commerce, Science and Transportation, and Senator Ed Markey (D-Mass.), a member of the committee and author of the Telephone Consumer Protection Act (“TCPA”), recently announced the introduction of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act.  Senator Roger Wicker (R-Miss.), the chairman of the committee’s Subcommittee on Communications, Technology, Innovation and the Internet is a cosponsor of the bill.

The TRACED Act is introduced in a climate of increased frustration from consumers about robocalls that are not being sufficiently addressed by the TCPA.  Senator Thune explained that “the TRACED Act targets robocall scams and other intentional violations of telemarketing laws so that when authorities do catch violators, they can be held accountable. Existing civil penalty rules were designed to impose penalties on lawful telemarketers who make mistakes. This enforcement regime is totally inadequate for scam artists, and we need do more to separate enforcement of carelessness and other mistakes from more sinister actors.”

Significantly, the bill broadens the authority of the Federal Communications Commission (“FCC”) to levy civil penalties of up to $10,000 per call against those violating telemarketing restrictions. The bill also provides new criminal fines of up to $10,000 per violation, with the opportunity to treble such amount if the activity is intentional.  The bill also extends the window for the FCC to catch and take civil enforcement action against intentional violations to three years after a robocall is placed, instead of only one year. Furthermore, the bill brings together several federal agencies as well as state attorneys general and other non-federal entities to identify and report to Congress on improving deterrence and criminal prosecution of robocall scams. The bill also requires providers of voice services to adopt call authentication technologies to enable telephone carriers to verify that calls are legitimate before they reach consumers phones. Finally, the bill directs the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers using unauthenticated numbers.  A copy of the TRACED Act is located HERE.

Senator Thune’s statement regarding the TRACED Act is located HERE  and Senator Markey’s statement is HERE .  We will continue to monitor the status of the TRACED Act and report back with updates.

If you have any questions or would like more information, please contact Matt Foree at [email protected].

TCPA Class Action on Opt-Out Confirmation Text Messages Dismissed

Posted on: July 15th, 2013

By: Matt Foree

A U.S. District Court in California recently dismissed a putative class action under the Telephone Consumer Protection Act (TCPA).  See Holt v. Redbox Automated Retail, LLC, Case No. 11cv3046 (S.D. Cal. 2013).  The matter concerned Defendant Redbox Automated Retail, LLC (Redbox) and its post opt-out confirmation text messages.  The original plaintiff in the matter, Kathleen Holt, who filed the complaint individually and on behalf of all others similarly situated, responded to an unsolicited text message from Redbox with an opt-out text message.  In response to Holt’s text, Redbox sent another text message confirming the opt-out and supplying a link to a website for more information.

In response to the plaintiffs’ putative class action Complaint for violations of the TCPA, Redbox filed a motion to dismiss, raising several arguments, including a challenge to the constitutionality of the TCPA.  Among other things, Redbox argued that prohibiting the confirmation messages would be a restriction on noncommercial speech inconsistent with Congress’s intent, which was to prohibit commercial telemarketing practices considered to be a risk to public safety and an invasion of privacy.  As a result of the constitutional challenge, the United States intervened in support of the constitutionality of the TCPA.

Redbox also relied on the Federal Communications Commission’s (FCC) ruling in the SoundBite Communications, Inc. (SoundBite) matter, which concerned a similar issue as in the Redbox case.  In the SoundBite matter, the FCC held that sending a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the FCC’s rules as long as the confirmation text has certain characteristics, including that it merely confirm the opt-out request and not include marketing or promotional information and is the only additional message sent to the consumer after receipt of the opt-out request.  The SoundBite declaratory ruling is available here.

In analyzing Redbox’s motion to dismiss, the court determined that the plaintiffs failed to state a claim as a matter of law.  In so holding, the court relied on previous precedent, Ibey v. Taco Bell Corp., No. 12-cv-0583-H, 2012 WL 2401972 (S.D. Cal. June 18, 2012), in which the U.S. District Court for the Southern District of California found no violation for a confirming text based solely on its interpretation of the TCPA.  Specifically, that court held that “the TCPA does not impose liability for a single, confirmatory text message,” noting the purpose of the TCPA to “prevent unsolicited automated telemarking and bulk communications.”  Id. at 3.  The Ibey court also held that “[t]o impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute – prevention of unsolicited telemarketing in a bulk format.”  Id.  The court relied on Ibey to grant Redbox’s motion to dismiss, reasoning that the TCPA does not impose liability for the single, confirmatory text messages at issue, such that the plaintiffs failed to state a claim as a matter of law.

Additionally, the court addressed the plaintiffs’ argument that Redbox’s confirming texts include forbidden marketing and promotional information in the form of links to Redbox’s website.  The court, however, declined to adopt this “‘look through’ approach to liability under the TCPA,” opting instead to view the texts themselves to determine that they did not contain marketing or promotional information for products or services.  As a result, the court held that the texts do not contravene SoundBite and could not form the basis for liability under the TCPA.

Significantly, a large portion of Redbox’s motion to dismiss was devoted to a constitutional challenge to the TCPA.  In response to Redbox’s constitutional challenge, the United States intervened to file a brief in support of the constitutionality of the TCPA.  As such, the stage was set for the court to add to the developing case law regarding such challenges by addressing these arguments.  By relying on SoundBite and Ibey, however, the court avoided analyzing Redbox’s constitutional arguments.