TCPA

In an unpublished decision, Kinder v. Allied Interstate, Inc.,  2010 WL 2993958 (Cal.App. 4 Dist.) Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115), the California Court of Appeal found that Mr. Kinder's TCPA claims arising out of calls placed to his cellular telephone failed.  We previously had discussed Mr. Kinder's litigation in small claims court here: http://www.calautofinance.com/?p=679.  The Court of… Read More

In Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y.,2010), Judge Schroeder found no violation of the TCPA or FDCPA for automated calls placed to a debtor. Judge Schroeder explained: On December 20, 1991, Congress enacted the Telephone Consumer Protection Act (TCPA), as codified in section 227 of the Communications Act of 1934, as amended, in an effort to address… Read More

In Sengenberger v. Credit Control Services, Inc. 2010 WL 1791270 (N.D.Ill. 2010), Judge Zagel found unlawful certain pre-recorded calls made to a consumers cellular telephone.   The TCPA prohibits the use of a prerecorded voice when making calls to a cell phone. 47 U.S.C. § 227(b)(1). Specifically, the TCPA states that it is unlawful for a person: “(A) to make… Read More

In Holster v. Gatco, Inc., --- S.Ct. ----, 2010 WL 1525998 (2010), the United States Supreme Court granted certiorari as to whether a TCPA matter could proceed in federal court notwithstanding New York’s prohibition against TCPA class action.  Judge Scalia concurred in the grant of certiorari, explaining:   The petition for a writ of certiorari is granted. The judgment is… Read More

In Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., --- S.Ct. ----, 2010 WL 1222272 (2010), Justice Scalia addressed the case where a medical provider brought putative class action against automobile insurer, alleging breach of contract, bad faith breach of contract, and violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance… Read More

On March 22, 2010, the FCC issued it's notice of proposed rulemaking, a copy of which is here.  This competes with the FTC's efforts to regulate the TCPA, too.  The FCC's version includes regulations which, if effectuated, would prohibit a person from initiating any telephone call using an automatic telephone dialing system or an artificial or prerecorded voice to a consumer’s… Read More

In Kazemi v. Payless Shoesource Inc., 2010 WL 963225 (N.D.Cal. 2010), Judge Patel held that under Twombly and Iqbal, Plaintiff stated a claim under the TCPA by alleging that he received unsolicited text messages on his cellular telephone in SMS format, and that defendant’s equipment had the capacity to store or produce telephone numbers to be called, using a random… Read More

In United States v. Dish Networks, LLC., 2010 WL 376774 (C.D.Ill. 2010), the California Attorney General associated with Attorneys General from other states to sue Dish Networks for directly and through its authorized dealers (Dealers) and third parties, violating the Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR), the Federal Trade Commission Act (FTC Act), the Telephone Consumer Protection Act… Read More

On January 20, 2010, the FCC Announced its proposed rule on the TCPA. See the Press Release here and the Proposed Rule here. Key provisions proposed by the FCC include: 1. Requiring sellers and telemarketers to obtain telephone subscribers’ express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls, even when there exists an established business relationship between… Read More

On Friday, the Court of Appeals for the Ninth Circuit issued its opinion in Satterfield v. Simon & Schuster, Inc. -- F.3d --, 2009 WL 1708081 (9th Cir. 2009).  Satterfield addressed three issues.  First, was the defendant's dialer an automatic telephone dialing system under the TCPA.  The Court of Appeals held that there as a triable issue of fact, and… Read More

The Plaintiff sued Fairlane Credit in small claims court for violating the Telephone Consumer Protection Act.  (Kinder v. Fairlane Credit (S.D. Sup. No. 37-2008-00009227-SC-SC-CTL). Fairlane Credit offered a Trial Brief, which explained the basis for the Plaintiff's claim against Fairlane Credit, and the procedural history of his lawsuit: This is [the Plaintiff’s] cottage industry:  Plaintiff's claims arise out of Defendants' alleged… Read More

On January 12, 2009, Paul D. S. Edwards filed a petition with the FCC for an expedited clarification and declaratory ruling regarding the Commission’s rules under the Telephone Consumer Protection Act (TCPA). Specifically, Edwards asks the Commission to clarify whether a creditor may place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to… Read More

In Satterfield v. Simon and Schuster, 2007 WL 1839807 (N.D.Cal. 2007), Judge Wilken addressed what constitutes an “automatic telephone dialing system” and what constitutes “consent” under the TCPA.  The case arose from promotional text messages sent to cellular telephones regarding a new Steven King novel “Cell”.  The cellular telephone owners received the messages because they signed up for nextones.com to… Read More

In Guy's World, Inc. v. Condon -- So.2d --, 2008 WL 5411972 (Fla.App. 2008), the Florida Court of Appeal commented on whether the TCPA allows for class actions.  The Court of Appeal found the question "important", but apparently not "important" enough to decide:   On appeal, Guy's World argues that the TCPA does not authorize class actions. This is, indeed, a much litigated issue… Read More

In Bickelmann v. Assil Sinskey Eye Institute (2008) 2008 WL 5207090, the Second District Court of Appeal declined to certify a 'junk-fax' class under the TCPA because its 'established business relationship' requirement necessitated individualized questions of fact, explaining: Plaintiff contends that the burden is on the drafter or sender of the advertisement, not the putative class member, to show an… Read More

In Hicks v. Client Services, Inc. (S.D.Fla 2008) Case No. 07-61822-CIV-WPD, District Court Judge Dimitrouleas addressed whether a TCPA class can be certified for (i) all Florida citizens (ii) who received any telephone call from Defendant to said person's cellular telephone service made (iii) through the use of any automatic telephone dialing system or an artificial or pre-recorded voice, (iv)… Read More

On November 21, 2008, Judge Illston heard argument on whether the Hobbs Act deprived her of jurisdiction to rule on the FTC's Order interpreting the TCPA.  Judge Illston granted defendant's Motion to Vacate.   See her ruling here. Read More

Update:  Motion Continued to November 21, 2008. -Ed.    Defendants' Motion to Dismiss based on the Hobbs Act is fully briefed, and scheduled for hearing on October 31, 2008.   Plaintiffs' Opposition states: It appears that part of Defendant's motion has merit and Plaintiff agrees that the Orders granting Plaintiff's and denying Defendant's summary judgment motions must be set aside for… Read More

The Motion, scheduled for hearing on October 31, can be reviewed here: leckler-v-cashcall-motion-to-dismiss-under-hobbs. Read More

On May 22, 2008, Judge Fogel of the United States District Court for the Northern District of California held that the TCPA's requirement that TCPA claims be filed in state court did not deprive federal courts of diversity jurisdiction to hear such claims.  The TCPA dictates that an individual may bring a private right of action in state court.  (47 U.S.C.  § 227(b)(3),… Read More