While a recent ruling in the Eighth Circuit held that technical violations of the TCPA are actionable where a recipient expressly consented to receive a fax, most jurisdictions continue to find that the TCPA does not allow a private cause of action for technical violations included in either faxes or telephone calls.
Imagine a worst-case scenario for a company attempting to comply with federal and state telemarketing laws.
How’s this? A company receives a request for a fax advertisement, and then the recipient of the fax, who undisputedly requested it, sues, not for receipt of the fax but for failure to include a disclosure at the top of the fax. Thus, the plaintiff in the suit could opt-in to thousands of faxes, conceivably, and pick and choose victims from the faxes rolling in.
A Court of Appeals in the Eighth Circuit recently approved such a class action suit—not for the fax itself, which was legal, but for “technical” violations of the TCPA contained in that fax. Nack v. Walburg, 2013 U.S. App. LEXIS 10158, *10 (8th Cir. 2013).
In Nack, plaintiff consented to receive a fax advertisement from defendant. However, when plaintiff received the fax, it did not contain opt-out language that informed the recipient of the ability and how to avoid future unsolicited advertisements as required by the TCPA. 47 C.F.R. § 64.1200(a)(3)(iv). Id. at *3. In its decision, the court solicited input from the FCC, who responded that opt-out language is required, even on faxes sent after obtaining a potential recipient’s consent. Id. at *7.
The FCC explained that the regulation reached faxes for which the recipient had granted consent because consent, once granted, need not be interpreted as permanent. The FCC sought to ensure that even recipients who consented to receive a fax could easily and without expense stop the sending of any possible future faxes. Id. Thus, the court reversed the lower court decision and in agreement with the FCC, held that opt-out language is required in all faxes regardless of whether the fax is unsolicited or not. Id. at *11.
Most courts, however, have ruled that “technical” violations of FCC regulations are not actionable by private plaintiffs, but only by the FCC. See Worsham v. Ehrlich, 957 A.2d 161, 171 (Md. Ct. Spec. App. 2008), Charvat v. Echostar Satellite, LLC, 621 F. Supp. 2d 549, 555-556 (S.D. Ohio 2008), Boydston v. Asset Acceptance LLC, 496 F.Supp.2d 1101, 1106 (N.D. Cal. 2007), Cunningham v. Credit Mgmt., L.P., 2010 U.S. Dist. LEXIS 102802, *14 (N.D. Tex. 2010), Kovel v. Lerner, Cumbo & Assoc., Inc., 32 Misc. 3d 24, 27 (N.Y. App. Term 2011).
In general, the TCPA provides a private cause of action for the receipt of an unsolicited fax, 47 U.S.C. § 227(b)(3). The majority of courts have ruled that a private cause of action is only available if sending the fax violates the TCPA.
In Culbreath v. Golding Enterprises LLC, club owners sent an attorney’s office an unsolicited fax offering free admission to their club. While it was undisputed that the fax itself violated the TCPA, the court held the attorney could not recover damages for the fax’s lack of identifying information in 47 U.S.C. § 227(d). The court stated:
The fact that Congress expressly authorized private causes of action in two subsections of the statute, but not in subsection 227(d), makes it clear that if Congress had wanted to enable individuals to bring suit for technical violations, it would have said so.
114 Ohio St. 3d 357, 360 (Ohio 2007).
In Landsman & Funk, P.C. v. Lorman Bus. Ctr., plaintiff argued defendant’s fax violated the TCPA because it did not explicitly state that failure to comply with an opt-out request within 30 days is unlawful. The court granted a motion to dismiss because the opt-out notice complied with the statute, and plaintiff did not assert the fax violated any other statute or regulation. 2009 U.S. Dist. LEXIS 18114, *18 (W.D. Wis. 2009).
In Lary v. Flasch Bus. Consulting, a court similarly held that while violations of 47 U.S.C. § 227(b) are subject to a private cause of action, Congress did not authorize a private cause of action for technical violations of subsection (d) of that statute. The court held:
[P]rivate rights of action to enforce federal law must be created by Congress, and in the absence of statutory intent to create a private right and a private remedy under a federal law, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.
878 So.2d 1158, 1165 (Ala.Civ.App.2003).
Klein v. Vision Lab Telecommunications, Inc. stated that “allowing separate recovery for each and every technical violation alleged would create a windfall for plaintiffs clearly not in the contemplation of Congress.” 399 F. Supp. 2d 528, 540 (S.D.N.Y. 2005).
The TCPA also prohibits calls made to cell phones using any automatic telephone dialing system or an artificial or prerecorded voice without prior express consent and calls to residential lines using an artificial or prerecorded voice without prior express consent. 47 U.S.C. §§ 227(b)(1)(A), (B). Referring to 47 U.S.C. § 227(c)(5) which permits a private cause of action for the unlawful telephone calls, a court in Ohio ruled that:
“each such violation” cannot refer to the phrase “in violation of the regulations,” because this phrase is not a noun but a prepositional phrase modifying the noun “call.” Therefore, the term “each such violation” must refer to “telephone call…in violation of the regulations, and damages are awardable on a per-call basis.
Charvat v. GVN Mich., Inc., 561 F.3d 623, 632 (6th Cir. 2009). The legislative history of the TCPA also supported that interpretation. Id. at n.8.
Thus, while the Eighth Circuit recently ruled that technical violations of the TCPA are actionable in a case where a recipient expressly consented to receive a fax, most jurisdictions have found that the TCPA does not allow a private cause of action for technical regulatory violations included in either faxes or telephone calls.
Our recommendations after Nack, however, are the same as before the case: you should ensure your communications comply with the law, and the “technical” regulations the FCC implemented pursuant to the law. Post-Nack, however, Plaintiffs (and classes) may join the FCC in attempted enforcement of those regulations.