It has become fashionable to think of the TCPA as a monolithic beast that remedies all “unwanted” communications. But Congress’s law has a well-defined, two-part structure that courts are supposed to apply. As demonstrated in Jones v. Montachusetts Reg’l Transit Auth1, even courts struggle with the TCPA’s two-part structure. There, the district court failed to understand the important differences between the ATDS/Prerecorded Voice subsection of the TCPA, on the one hand, and the do-not-call (“DNC”) subsection, on the other. So the First Circuit reversed the district court’s decision. The lower court’s error provides an excellent opportunity for a refresher on the two pillars of the TCPA, which we covered in greater detail [HERE].
Primer on ATDS/Prerecorded Voice and DNC Subsections of the TCPA
• TCPA § 227(b) – ATDS/Prerecorded Voice2
The ATDS/Prerecorded Voice subsection has two main prohibitions. First, it prohibits making calls to cell phones with an ATDS or an artificial or prerecorded voice. Second, it prohibits telemarketing calls to residential numbers with an artificial or prerecorded voice. But callers can make those calls if they first receive the called party’s consent (which can get rather specific for telemarketing calls).
• TCPA § 227(c) – DNC3
The DNC subsection also has two main prohibitions. First, it prohibits making telephone solicitation calls to residential numbers registered on the National Do Not Call Registry (“NDNCR”). Second, it prohibits making telephone solicitation calls to the telephone numbers of people who have made specific do-not-call requests to that entity4. Upon receiving such a request, the entity must place the person’s number on its company-specific do-not-call list5. The TCPA defines “telephone solicitations” as calls made to encourage “the purchase or rental of, or investment in, property, goods, or services6.” But marketing calls made with the called party’s prior express consent or subject to an established business relationship do not meet that definition.
Significantly, the prohibitions of the ATDS/Prerecorded Voice subsection do not apply only to telephone solicitations. Further, an EBR is not an exception to the prohibitions of the ATDS/Prerecorded Voice subsection. These are important distinctions.
Jones v. Montachusetts Reg’l Transit Auth.
• District Court Grants Motion to Dismiss
In Jones, the plaintiff alleged that Montachusetts Regional Transit Authority (“MRTA”) made calls to him that violated both the ATDS/Prerecorded Voice and DNC subsections of the TCPA. MRTA filed a motion to dismiss. It argued that the plaintiff lacked standing to maintain his TCPA claims. Specifically, MRTA argued that the calls were not TPCA-prohibited telephone solicitations as they were business calls made to the plaintiff, in his capacity as an agent of one of MRTA’s subcontractors. The district court agreed with MRTA, and dismissed both of plaintiff’s TCPA claims. Then plaintiff appealed to the First Circuit.
• First Circuit Reverses Dismissal of Plaintiff’s ATDS/Prerecorded Voice Claim
On appeal, the First Circuit reversed the district court’s dismissal of plaintiff’s ATDS/Prerecorded Voice claim. The First Circuit correctly found that whether the calls were actually business calls made to plaintiff in his capacity as an agent of a MRTA subcontractor was irrelevant to plaintiff’s ATDS/Prerecorded Voice claim. (Bizarrely, apparently “MART does not dispute that an ATDS was used to place the calls at issue.” Obviously, one hopes they re-read the Supreme Court’s Facebook v. Duguid decision, since it should be difficult, if not impossible, to find an ATDS in use these days.) As explained above, the ATDS/Prerecorded Voice subsection does not apply only to telephone solicitations. The district court clearly erred by failing to understand the full scope of the ATDS/Prerecorded Voice subsection.
The First Circuit did uphold the district court’s dismissal of plaintiff’s DNC claim. Specifically, the First Circuit agreed with the district court that the calls at issue were not telephone solicitations. This was because they were, by the Plaintiff’s own admission, business-to-business calls and not trying to sell the plaintiff anything. Again, if you’re not marketing a good, service, or property, your calls are not telephone solicitations. The DNC subsection’s prohibitions only apply to telephone solicitations. Thus, the district court properly dismissed that claim.
Jones demonstrates that courts are still struggling to understand and properly apply the TCPA. Despite that, the strict liability nature of the TCPA means there is no room for leniency, even when one unintentionally violates the TCPA due to a misunderstanding7. Therefore, it is imperative for callers to be familiar with all the ins and outs of the TCPA.
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...
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