Recent Developments In Telephone Consumer Protection Act Litigation – Consumer ProtectionOctober 14, 2021
Litigation of the Telephone Consumer Protection Act (TCPA) is an
active area with frequent developments important to the consumer
finance space. Two recent cases are worthy to note. In Loyhayem v. Fraser Fin. & Ins. Servs.,
Inc., 7 F.4th 1232 (9th Cir. 2021), the U.S. Court of
Appeals for the Ninth Circuit held that the TCPA applies not only
to “telemarketing” or “advertising” calls, but
also to job-recruitment robocalls. In Fischman v. MediaStratX,
LLC, No. 20-CV-83, 2021 WL 3559639 (E.D.N.C. Aug. 10, 2021),
the Eastern District of North Carolina entered the debate on
whether 47 C.F.R. § 64.1200(d) contains a private right
of action by holding that it does.
Lenders should be aware of these developments because
Loyhayem solidifies a broader interpretation of what
constitutes the use of autodialer technology and Fischman
moves the needle on the weight of authority supporting an
interpretation of the TCPA to require private parties to maintain
policies and procedures regarding a private do not call list.
At issue in Loyhayem is the scope of 47 U.S.C.
§ 227(b)(1)(A)(iii)’s prohibition on making calls
using an autodialer or an artificial or prerecorded voice to any
telephone number assigned to a cellular telephone service. The
plaintiff alleged that he received a “job recruitment
call” on his cell phone that was made using both an autodialer
and an artificial or prerecorded voice. Id. at 1233?34.
The district court granted the defendant’s motion to dismiss
without leave to amend, holding that the job recruitment call did
not constitute “a telemarketing or advertisement call”
prohibited by the TCPA. The district court relied on the
definitions of “advertisement” and
“telemarketing” under 47 C.F.R. § 64.1200(f)(1)
and (f)(12). Id. at 1234. An “advertisement”
under § 64.1200(f)(1) is “any material advertising
the commercial availability or quality of any property, goods, or
services.” “Telemarketing” is defined under
§ 64.1200(f)(12) as “[the initiation of] a telephone
call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which is
transmitted to any person.” See Loyhayem, 7
F.4th at 1234.
The Ninth Circuit reversed, holding that the restrictions on use
of an autodialer under 47 U.S.C. § 227(b)(1)(A)(iii) are
not limited in scope to telemarketing or advertisements. Citing 47
C.F.R. § 64.1200(a)(1), the Ninth Circuit further found
that the FCC implementing regulation does not limit the scope of
restrictions on the use of an autodialer solely to telemarketing or
advertisements. Loyhayem, 7 F.4th at 1235. The court
further noted that although robocalls involving telemarketing or
advertising require prior express written consent and other calls
require only prior express consent, this did not remove robocalls
from the scope of the TCPA’s coverage unless the calls involve
advertising or telemarketing. Id.
In Fischman v….