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CEB Prac. Guide § 2B.18: "Called Party" -- Unintended Recipients

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District Court (N.Y.) Says LiveVox System Was An ATDS Under TCPA; Says No “Reasonable Reliance” Defense To Wrong-Number Call

by Scott J. Hyman |

In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096 (S.D.N.Y. Mar. 28, 2019), Judge Swain found that a LiveVox system constituted an ATDS under the TCPA. The Court next turns to the question of whether the LiveVox system at issue in this case is a predictive dialer within the meaning of the FCC's… Read More

District Court (Minn.) Finds No ATDS Was Used; Finds No Liability to Called Party Possessing Recycled Phone Because Caller Reasonably Relied on Consent of Its Customer

by Scott J. Hyman |

In Roark v. Credit One Bank, N.A., Defendant., 2018 WL 5921652 (D.Minn., 2018), Judge Magnuson found that no ATDS was used by a caller under post-ACA standards. Roark is incorrect that ACA Int’l has no bearing on previous FCC rulings that determined that predictive dialing systems are autodialers. The D.C. Circuit in fact rejected this very argument. “According to the [FCC],… Read More

District Court (Md.) Finds Debt Collection Calls Exempt from TCPA

by Scott J. Hyman |

In Farrish v. Navy Federal Credit Union, 2017 WL 4418416, at *2–3 (D.Md., 2017), Judge Chasanow dismissed a TCPA claim based on debt collection calls placed by a credit munition because such calls are exempt from the TCPA. The TCPA prohibits certain problematic telephone solicitation practices. 47 U.S.C. § 227(b). In enacting the TCPA, Congress allowed the Federal Communications Commission (“FCC”)… Read More

Debt Collectors’ Trade Group Sues FCC to Challenge TCPA Declaratory Ruling

by Scott J. Hyman |

ACA International, the national debt collectors' trade organization, sued the FCC to challenge the FCC's declaratory ruling on the TCPA.  A copy of the lawsuit can be found here:  ACA Petition for Review 7-13-15. The ACA's press-release described the substance and purpose of their action: ACA International has been at the forefront of a long-time effort to clarify application and… Read More

FCC Issues Omnibus Declaratory Ruling and Order on ATDS, Consent, Revocation, “Called Party”, and Informative/Telemarketing Calls

by Scott J. Hyman |

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More

District Court (Cal.) Says TCPA Plaintiff Adequately Pleaded Use of an ATDS and Absence of Consent under Soppett

by Scott J. Hyman |

In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett.  At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute's definition of an automatic telephone dialing system. See Marks v. Crunch San Diego,… Read More

District Court (Wis.) Denies TCPA Class Cert.; Says Non-Contracting Parties Still Theoretically Might Give Consent, Rendering Class Non-Ascertainable and Non-Superior

by Scott J. Hyman |

In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More

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