Under the Telephone Consumer Protection Act (“TCPA”), there are two types of do-not-call lists: company-specific do-not-call lists and the National Do Not Call Registry (“NDNCR”). They’re clearly not the same thing, and the differences matter, as the plaintiff in Thompson v. Genesco recently learned the hard way.
Company-Specific Do-Not-Call Lists vs. NDNCR
The TCPA regulations relating to company-specific do-not-call lists and the NDNCR are found in 47 C.F.R. § 64.1200 (the FCC’s TCPA-implementing regulations). Subsection 64.1200(c) addresses the NDNCR. Meanwhile, 64.1200(d) deals with company-specific do-not-call lists.
64.1200(c) places two different restrictions on telephone solicitations. First, it limits the making of telephone solicitations to between the hours of 8 a.m. to 9 p.m.1 Second, it prohibits the making of telephone solicitations to residential telephone numbers registered on the NDNCR.2
64.1200(d) requires an entity to maintain an internal do-not-call list of persons who make a company-specific do-not-call request.3 64.1200(d) also requires that the entity’s personnel be trained on the existence and use of the internal do-not-call list.4 Importantly, 64.1200(d) has nothing to do with the NDNCR.
Thompson v. Genesco, Inc.
In Thompson v. Genesco, Inc.,5 the plaintiff failed to comprehend these differences. There, Thompson claimed he received marketing text messages from Genesco, despite his number being on the NDNCR. From those allegations, it appeared he was claiming Genesco violated 64.1200(c). But instead, perplexingly, the plaintiff claimed Genesco violated 64.1200(d). Genesco, who filed a motion for judgment on the pleadings, even pointed out that plaintiff likely intended to allege Genesco violated 64.1200(c).
The plaintiff, instead of recognizing his mistake, doubled downed on the fact that he was alleging Genesco violated 64.1200(d). This error was obvious to the court. But the court noted it would not question the plaintiff’s insistence, as he was “the master of his own complaint.”
Plaintiff’s insufficient 64.1200(d) allegations
The plaintiff also alleged that Genesco failed to have a written policy for maintaining an internal do-not-call list. He then included an allegation that Genesco failed to train its personnel on the existence and use of an internal do-not-call list. While those allegations are pertinent to a violation of 64.1200(d), the plaintiff was missing a key element of a 64.1200(d) claim. Genesco could not violate 64.1200(d) if the plaintiff did not make a company-specific do-not-call request to Genesco before he received the text messages at issue. There is no violation of 64.1200(d) without such a request.
Some mistakenly believe that registering one’s telephone number on the NDNCR constitutes the type of do-not-call request necessary for a 64.1200(d) violation. It does not. The necessary do-not-call request for a 64.1200(d) must be specifically made to the relevant entity. The general “do-not-call me” proposition one makes by registering their number on the NDNCR simply does not suffice for purposes of 64.1200(d).
Since the plaintiff never alleged that he made such a request to Genesco, the court properly recognized that plaintiff suffered no injury related to whether Genesco maintained a 64.1200(d)-required internal do-not-call list. As the court noted, if the plaintiff never made a specific do-not-call request to Genesco, then the plaintiff never would have appeared on Genesco’s do-not-call list, regardless of whether it maintained one or not. Therefore, it was irrelevant to plaintiff’s claim whether Genesco complied with 64.1200(d) or not. As a result, the court found that the plaintiff lacked standing to bring a claim against Genesco based on an alleged violation of 64.1200(d).
The plaintiff’s error highlights the importance of understanding the intricacies of the TCPA and its implementing regulations.
Topics
Effective 4/8/24: One-Time Text Confirming Receipt Of Consent Revocation Now Permitted
Recently the FCC announced that, effective April 8, 2024, an entity is allowed to send a one-time, follow-up text message confirming its receipt of a person’s revocation of consent. Under the TCPA, certain...
For more information or for a consultation, contact us using the form below or call 703-485-3535 for Tysons Corner, VA or 804-441-8440 for Richmond, VA.
