TCPA Updates: Some Good News for Defendants

There was a lot of controversy over the FCC's Omnibus TCPA ruling issued July 10, 2015, and it remains to be seen whether the DC Circuit will reverse the most controversial aspects of the ruling (i.e. the FCC's interpretation of "automatic telephone dialing system," its ruling on reassigned wireless numbers, and its statements regarding revocation of consent).  A briefing schedule has been set for the appeal, with the Petitioners' opening brief due November 25 and the appeal fully briefed in mid-February of 2016. 

But the fallout in the courts has not been so bad.  There have been several defense-friendly decisions regarding who makes the call (and therefore is liable for any TCPA violation), and several defense-friendly decisions concluding that the need for human intervention in order to make calls or send text messages precludes a finding that the equipment at issue is an "automatic telephone dialing system."  

There also have been several decisions denying class certification on the grounds that the class is not ascertainable.  While the federal rule that sets forth the requirements for class certification does not explicitly require that members of the class be ascertainable through objective, verifiable criteria, federal courts consistently have imposed such a requirement. In the TCPA class action context, it is proving to be a powerful defense.  

For example, in Sherman v. Yahoo! Inc., No. 13-cv-0041 (S.D. Cal. September 23, 2015), the district court denied a motion to certify a proposed class of "all persons within the United States who were sent a [Welcome] text message on a telephone number assigned to cellular telephone provider AT&T and/or Cingular, by Defendant . . . between May 1, 2013 and May 31, 2013, and whose cellular telephone number is associated with a Yahoo account." Although Yahoo!'s records could be used to come up with a list of the AT&T and Cingular cell phone numbers to which the welcome texts had been sent during the time frame at issue, the plaintiff offered no reliable way to determine who were the regular users of those numbers on the dates the welcome texts were sent.  Yahoo!'s database did not have complete or accurate identifying information associated with cellphone numbers.  Reverse look-ups would only identify current users of the cell phone numbers, not necessarily the user at the time (wireless numbers frequently are recycled), and are otherwise unreliable. And subpoenas to the wireless carriers could not be relied upon because cellular carriers often refuse to turn over the requested information due to state privacy laws, and even if they did produce the information, over 40% of subscribers are on group plans (work or family) so the records would not identify the actual user of the number.  Because of these problems, the plaintiff had failed to meet her burden of offering "an objective, reliable, and administratively feasible method of ascertaining the class" and her motion to certify a class was denied.  

Lifetime Entertainment achieved the same result in Leyse v. Lifetime Entertainment Services, No. 13-cv-5794 (S.D.N.Y. Sept. 22, 2015). There the plaintiff sought to certify a class of "all persons to whose residential telephone lines [Lifetime]initiated, in August 2009, a telephone call using a prerecorded voice to deliver [a specific message]." Because Lifetime had no record of the numbers that had been called, the plaintiff proposed to locate class members through publication in a New York City newspaper.  The court rejected this proposal, finding that because the judge was unable to determine if any particular individual is a member of the class using objective criteria, the proposed class failed to meet the ascertainability requirement.

The district court similarly denied a class certification motion based on the lack of an objective and verifiable means to ascertain the class in City Select Auto Sales, inc. v. BMW Bank of North America Inc., No. 13-cv-4595 (D.N.J. Sept. 29, 2015). The defendant had a database that included the potential universe of class members (businesses that had received a BMW faxed advertisement) but there was no record of the specific businesses or fax numbers to which the faxes actually were sent, so no objective way of identifying the members of the proposed class.

An ability to defeat class certification in a TCPA case is a welcome weapon for defendants.  Once a court determines that the case may not proceed on a class basis, the plaintiff is left with their individual claim, worth a maximum of $1,500 per unlawful call/text/fax.  The defendant can simply pay the full value of the claim, or it can continue to fight it.  Either way, it can breath a sigh of relief that it will not be facing a potentially anihilating class-wide judgment--a prospect that has led to many multi-million dollar TCPA class action settlements.