Okay, so I expect to cover more at the summit next week, but I have to spend a few minutes talking about the content of the calls being claimed by TCPA as these things are gaining momentum.
The CFR requires that certain communications contain specific content. For example, 47 CFR 64.1200 (b) requires that all pre-recorded calls contain specific disclosures and marketing messages of this variety must have a quick unsubscribe mechanism provided. 47 CFR 64.1200 (d), on the other hand, requires disclosure of the identity of the caller / sender of the message, including (possibly) text messages.
The question in cases brought under these sections of the CFR is whether there is a private right of action. The TCPA contains two provisions authorizing the FCC to promulgate CFR regulations – 227 (c) and 227 (d). The jurisprudence is consistent that a private right of action exists to enforce provisions promulgated under 227 (c) but not under 227 (d). Therefore, determining whether a CFR section has been promulgated under either of these two sections determines whether you can be sued directly for violation of the rule. (Notably, a regulator, Industry Traceback Group, or carriers can still sue you for breaking these rules, whether or not you can face private lawsuits.)
If a private lawsuit is allowed, of course, you’ll face 500 per call / text violating the provision (minimum), likely as part of a putative class action lawsuit, so that’s a big deal.
Most courts have (correctly) concluded that the 47 CFR 64.1200 (b) requirements were promulgated under 227 (d). 227 (d) deals with the content required in pre-recorded calls – and this matches the requirements of 64.1200 (b) quite well.
But a growing number of court decisions have now concluded that the content requirements of 47 CFR 64.1200 (d) are different. These, the argument goes, were enacted under Section 227 (c) because they help callers identify the caller for the purpose of making a DNC request. And the implementation of DNC is the essence of 227 (c).
The most recent decision on this issue may ultimately come down to the tide changer.
In Worsham v. Disc. Power of attorney, civil action n ° RDB-20-0008, 2021 US Dist. LEXIS 230937 (D. Md. December 1, 2021), the court REVERSED on the question of whether there was a private right of action. The same court had previously concluded that no private right of action was allowed; that is, the CFR provision was enacted under 227 (d) and not 227 (c).
But in the meantime, an appeals court in Maryland – where the case is being brought – has been asked to consider the same issue. And the Maryland court came to a different conclusion. In order to ensure “courtesy”, therefore, the Worsham The court chose to reconsider its earlier ruling granting judgment for the defense and allowed the content claim to continue.
This may end up being a turning point for TCPA content claims. The Worsham The ruling is a widely cited opinion and with this reversal noted, courts that consider this issue in the future are likely to have an easier time allowing those claims to proceed. Indeed, these theories were already gaining momentum.especially when it comes to text messages– before that decision, so the doors can really be opened wide now.
I’ll keep an eye on this.
