The telemarketing industry was rocked this week by a decision out of the United States District Court for the Middle District of Florida in a Telephone Consumer Protection Act (“TCPA”) DNC text case. The arguments that resulted in the Court’s decision challenge long-held assumptions for what claims are viable under the TCPA, with reverberations likely to be felt throughout the industry.
What were the DNC Text rulings?
The facts at issue in the underlying lawsuit were fairly typical of a TCPA case: the plaintiff alleged receipt of a combination of text messages and telephone calls, which she claimed violated certain Federal Communications Commission (“FCC”) regulations, including constituent Do Not Call (“DNC”) provisions. The defendant, MortgagePros, LLC, moved to dismiss the claims by arguing, in part, that: (i) text messages are not telephone calls for purposes of the subject FCC regulations; and (ii) there is no private right of action under the TCPA for DNC violations.
In agreeing that text messages do not constitute telephone calls for purposes of the vast majority of FCC regulations, the Middle District of Florida joined the ranks of a growing list of courts that, in the wake of the Supreme Court’s ruling in Loper Bright, have significantly narrowed the TCPA’s once ever-expanding technology creep.
Increasingly, courts have used their judicial authority to freshly examine the scope of the FCC’s rulemaking authority under the TCPA. Since 2003, Courts have presumed that the FCC’s DNC regulations were legal exercises of authority delegated to the agency by Congress through the TCPA. In the instant matter, Klein Moynihan Turco LLP (“KMT”) challenged that premise head on.
In this case, we advanced an argument that rested on three primary pillars. First, we explained that the DNC regulations failed to satisfy a variety of procedural and substantive requirements enumerated in the TCPA. Second, we pointed out that the Do-Not-Call Implementation Act of 2003 (“DNC Act”) contains language that expressly directed the FCC to enact the DNC regulations. And third, we highlighted that the DNC Act does not expressly provide individuals with a private right of action. The Court agreed with the substantive and logical construction of this argument, ultimately concluding that the DNC regulations were not prescribed pursuant to the TCPA. As a result, the Court held that plaintiff is not permitted to claim that MortgagePros, LLC is liable to her for alleged violations of the DNC regulations.
What Do Rulings in this Groundbreaking DNC Text Case Mean For Your Business?
Given the number of TCPA cases filed in federal court every year, the vast majority of which primarily involve alleged DNC violations, we expect that this ruling will soon be felt throughout the entire telemarketing industry. To our knowledge, no court had previously been presented with the argument that the DNC regulations were not prescribed pursuant to the TCPA until KMT developed and advanced it. This ruling is a ringing example of the value of ensuring that your business partners with cutting-edge counsel that are capable of crafting creative arguments nimble enough for a rapidly evolving legal landscape and aggressive enough to pursue those arguments in the face of what appear to be slim odds.
MortgagePros can attest to this strategy. When advised of the historic ruling, it said that “We’re pleased the Court agreed with our position on the National Do-Not-Call Registry claim. MortgagePros picked KMT specifically because they were willing to take on this novel issue. MortgagePros does not settle claims simply because they are filed as a proposed class action or because defending it is expensive. We fight to aggressively defend ourselves, and will continue to do so.”
KMT’s attorneys have successfully defended countless 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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