Recent Developments In Telephone Consumer Protection Act Litigation

• Published date: 14 October 2021
• Subject Matter: Consumer Protection, Media, Telecoms, IT, Entertainment, Mobile & Cable Communications, Advertising, Marketing & Branding, Dodd-Frank, Consumer Protection Act
• Law Firm: Perkins Coie LLP
• Author: Ms Kristine E. Kruger

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...