The Secure Times

Posted by Kasey at 7:37 PM | Permalink | Comments (0) | TrackBacks (0)

A software company that gave advertising leads to a training company that sent unsolicited faxes advertising its own services and the software company’s product is not liable as a “sender” under the Telephone Consumer Privacy Act (TCPA) because there was no evidence that the faxes were sent on the behalf of the software company. Hughes v. FrontRange Solutions USA, Inc., No. D049869, 2007 Cal. Unpub. LEXIS 8344 (Cal. Ct. App. Oct. 16, 2007) (unpublished). The court granted the software company’s summary judgment motion, ruling that the evidence was insufficient to prove that the unsolicited faxes sent to the plaintiff by the training company were sent on behalf of the software company. The court found that even if the evidence showed that the software company offered leads to the training company and was aware that some of the leads resulted in faxed solicitations for the training company’s services, such facts do not establish that the faxes were sent on behalf of the software company.

Posted by Kristen Mathews at 4:26 PM | Permalink | Comments (0) | TrackBacks (0)

There is no private cause of action under the Telephone Consumer Protection Act (TCPA) for technical violations of the statute in failing to clearly display the date, time and identification of the sender. Culbreath v. Golding Enterprises, L.L.C., No. 05AP-1230, 872 N.E.2d 284 (Ohio Sept. 5, 2007). The appeals court affirmed the lower court's dismissal of the plaintiff's remaining TCPA and state consumer protection law claims. The court concluded that while the TCPA provides a private right of action for the receipt of an unsolicited fax, the statute does not provide a private right of action to individuals for a fax sender's violations of the technical labeling requirements. The court also ruled that under the Ohio consumer protection statute, only individuals, not corporations, have standing to bring suit for receiving an unsolicited fax that is not shown to be unfair or deceptive.

Posted by Kristen Mathews at 5:54 PM | Permalink | Comments (0) | TrackBacks (0)

In an action under the Telephone Consumer Protection Act (TCPA) removed to federal court under the court's diversity of citizenship jurisdiction, the question of whether the action may be maintained as a class action is a substantive issue to be decided under the law of the forum state. Giovanniello v. The New York Law Publishing Co., No. 07-1990, 2007 U.S. Dist. LEXIS 56694 (S.D.N.Y. Aug. 6, 2007). The district court granted the defendant's motion to dismiss the plaintiff's putative class action, because under New York C.P.L.R. §901(b), a case brought to recover statutory penalties may not be maintained as a class action. The court noted that in enacting the TCPA, Congress intended to incorporate state law limits on private causes of action under the Act. Applying the Erie doctrine, the court concluded that state law limits on class actions are substantive rather than procedural rules, and thus the class action could not be maintained. Because the plaintiff's individual claim was less than the $75,000 amount required for diversity jurisdiction, the court dismissed the case in its entirety.

The court noted that plaintiff Giovanniello, an attorney, and his current counsel, have been involved in several cases seeking class action relief under the TCPA, e.g. Giovanniello v. Carolina Wholesale Office Machines Co., Inc., 2007 U.S. Dist. LEXIS 60671 (S.D.N.Y. Aug. 20, 2007) (TCPA class action dismissed as moot because individual claim resolved and class certification denied in identical state court action). Note, however, other states may permit class actions under the TCPA. See American Home Services v. A Fast Sign Co., Inc., 2007 Ga. App. LEXIS 906 (Ga. Ct. App. Aug. 9, 2007) (Georgia appellate court affirmed the lower court's ruling certifying TCPA class action, rejecting the defendant's claim that the proposed class failed the commonality requirement based upon "the hypothetical existence of persons in the class against whom it could assert the existing business relationship exception").

Posted by Kristen Mathews at 5:49 PM | Permalink | Comments (0) | TrackBacks (0)

By Kristen Mathews, Thelen Reid Brown Raysman & Steiner LLP

This has been a source of confusion since companies first began to use text messaging to promote their wares. Due to the nature of the technology used to send SMS messages, there are two federal laws which could be read to apply directly to commercial SMS text messaging: (1) the Telephone Consumer Protection Act (TCPA), and (2) the CAN-SPAM Act. A recent case has muddied the waters further.

The TCPA was originally enacted in 1991 to apply to telemarketing sales calls. Later in 2003, the FCC issued a report interpreting the TCPA to apply to SMS text messages sent using an "automatic telephone dialing system."*

The CAN-SPAM Act became effective on January 1, 2004, and it applies to promotional e-mail messages that are sent to e-mail addresses that are composed of a username, an "@" sign, and a domain name. Since SMS text messages are often sent using addresses that have this format, the FCC, in a 2004 report, interpreted the CAN-SPAM Act to also apply to text messages that are sent using this address format. **

In 2005, one court confronted this question head-on. In Joffe v. Acacia Mortgage Corp. (121 P.3d 831, Ariz. App. 2005), the text messages in question were sent prior to the effective date of the CAN-SPAM Act, so the TCPA was the only federal cause of action alleged. The court, referencing but not relying on the FCC's report, found that the TCPA did apply to the text messages, since they were "calls" made to cellular phone numbers using an "automatic telephone dialing system."

Just recently, however, another court came to a contrary holding in Satterfield v. Simon & Schuster (2007 U.S. Dist. LEXIS 46325, N.D. Cal. June 26, 2007). The court found that the text messages in question were not sent using an "automatic telephone dialing system" and therefore were not covered by the TCPA.

Regardless of whether the TCPA or the CAN-SPAM Act, or both, apply to SMS text messaging, the basic rule is the same: you must obtain affirmative consent from the holder of a wireless device before sending promotional SMS text messages to the device. The CAN-SPAM Act provides considerably more detail than the TCPA, however, regarding the means by which such consent must be obtained.

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* Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 FR 44144, July 25, 2003.

** Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 69 FR 55765, September 16, 2004.

Posted by Kristen Mathews at 5:57 PM | Permalink | Comments (0) | TrackBacks (0)