In the aftermath of two United States Supreme Court decisions, defendants faced with Telephone Consumer Protection Act (“TCPA”) National Do-Not-Call list (“DNC List”) lawsuits have advanced several arguments previously foreclosed to them. Businesses defending TCPA lawsuits based on alleged DNC List violations now may have a powerful new defense. Below, we discuss a recent decision from a Florida federal court judge, the judge’s reasoning for her decision, and what this decision means for DNC List-related litigation.
The DNC List Decision Discussed
As our readers know, courts no longer are required to defer to the Federal Communications Commission’s (“FCC”) interpretations of the TCPA and instead, should independently analyze the statute itself in cases before them. After the FCC issued a Report and Order in 2003 stating that it “will presume wireless subscribers who ask to be put on the [DNC List] to be residential subscribers” (“2003 Order”), courts treated cellphone users as residential telephone subscribers for over two decades. That approach may no longer be the norm.
In Anthony v. Brian Marketing Group, the United States District Court for the Southern District of Florida denied Plaintiff’s motion for a final default judgment after concluding that Plaintiff failed to state a claim under the TCPA’s DNC provisions. The Court’s decision is significant because it rejected the core assumption underlying a lot of DNC List litigation proceedings – that a cellular telephone subscriber qualifies as a “residential telephone subscriber” under 47 U.S.C. § 227(c).
Plaintiff alleged that he received five unsolicited marketing text messages related to drug and alcohol treatment services within a 12-month period. According to the complaint, his cellphone number was listed on the National DNC Registry. After Defendant failed to appear, the clerk entered a default and Plaintiff moved for final default judgment, seeking declaratory relief and $2,500 in damages. The Court denied the motion.
In reaching its decision, the Court concluded that the FCC had exceeded its statutory authority in the 2003 Order by adopting rules treating cellular telephone subscribers whose numbers are registered on the DNC List as residential subscribers for purposes of the TCPA. By doing so, the Court reasoned that the FCC improperly expanded the scope of the TCPA’s private right of action to include cellular telephone users.
What the Decision Means for DNC List Litigation
Businesses facing TCPA DNC List-based litigation involving wireless numbers now have a significant statutory defense against such claims. However, the DNC List still remains an important component of TCPA compliance. As such, businesses should continue to maintain effective DNC List procedures, honor applicable internal DNC requests, and otherwise comply with the FCC’s telemarketing rules.
The attorneys at Klein Moynihan Turco (“KMT”) routinely: (1) provide TCPA-related and state-level telemarketing guidance; and (2) craft telemarketing policies and procedures for clients. In addition, KMT’s attorneys have successfully defended numerous companies in DNC List and other TCPA-related lawsuits. If you have been sued for violating the DNC List, the TCPA generally, or need assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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