To be a prerecorded voice message that the TCPA separately regulates, the message must be audible. Prerecorded text messages which have no sound component are not voice messages within the statute's meaning even if they are "an instrument or medium of expression"--one of the possible dictionary definitions of "voice." Read More
The owner and subscriber of a phone with a number listed on the Do-Not-Call Registry has suffered an injury in fact sufficient to confer Article III standing when unsolicited telemarketing calls or texts are sent to the number in alleged violation of the Telephone Consumer Protection Act even if the communications are intended for or solicited by another individual, and… Read More
Following Borden v. eFinancial, LLC (9th Cir. 2022) 53 F.4th 1230, this decision holds that to be an automatic telephone dialing system within the TCPA's meaning, the system must randomly or sequentially generate and dial telephone numbers. It is not enough that the system randomly or sequentially chooses telephone numberes that the defendant has obtained and stored in a different… Read More
To be an automatic telephone dialing system within the TCPA's meaning, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list of telephone numbers is not an autodialer even if the system automatically generates the ID numbers assigned to each telephone number on the stored… Read More
Following Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037, this decision holds that a person who receives a non-consented-to robocall in violation of the TCPA has Article III standing since the claim is similar to a common law claim for invasion of privacy and is statutorily protected. Read More
This decision holds that there is a constitutional limit on aggregate statutory damage awards even if the statutory damage per violation passes constitutional muster. An aggregate damage award may exceed due process limits in extreme situations—that is, when they are “wholly disproportioned” and “obviously unreasonable” in relation to the goals of the statute and the conduct the statute prohibits. Constitutional… Read More
Following Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037, 1044-1045, this decision affirms summary judgment for defendant in this TCPA suit based on a finding that plaintiff gave his express consent to defendant's text messaging his cellphone. A person who knowingly releases his cellphone number consents to be called at that number so long as… Read More
The TCPA (47 USC 227(b)(1)(A)) and the FCC's implementing regulation (47 CFR 64.1200(a)(1)) both prohibit any calls made by an autodialler (or with a pre-recorded message) to a cellphone regardless of the content of the call or message--unless it is an emergency call or one made with the recipient's express consent. The FCC's regulation imposes additional restrictions on telemarketing calls… Read More
On a discretionary appeal from a class certification order under Fed. R. Civ. P. 23(f), the Court of Appeal has jurisdiction to review any issue bound up with the decision to certify the class. Thus, in this case, on a 23(f) appeal from an order certifying two nationwide TCPA classes, the Court of Appeal had jurisdiction to consider whether the… Read More
To be an autodialer for TCPA purposes, a telephone device must either store phone numbers using a random or sequential number generator or produce phone numbers using such a generator. A device that stores phone numbers by some other means and then dials them is not an autodialer, and 47 USC 227(b)(1)(A) does not prohibit its use to call cell… Read More
