Courts Put a Halt to Some TCPA Class Actions Pending a Ruling of the D.C. Circuit

A significant case under Telephone Consumer Protecon Act of 1991 (“TCPA”) is pending before the United States District Court for the D.C. Circuit. Trial courts, including courts in the United States District Court for the Northern District of Illinois, a hotbed of TCPA class acon ligaon, have stayed cases pending the D.C. Circuit’s ruling in this important case. 

In June 2015, the Federal Communicaons Commission issued a comprehensive declaratory ruling and order on several thorny issues under the TCPA, including what constutes an “automac telephone dialing system” subject to the TCPA, who is the maker of a call under the TCPA, procedures for consent and revocaon of consent to receive calls and texts, and the related issue of “reassigned” numbers (i.e. when an individual who consents to receive calls on a phone number and later releases that number, which is then reassigned to another individual). 30 F.C.C.R. 7961 (July 10, 2015). Nine companies appealed the ruling and order to the United States Court of Appeals for the D.C. Circuit. ACA Int’l v. FCC, No. 15-1211. The court held oral argument in December 2016 but has not yet issued a decision.

The FCC’s ruling has caught the aenon of companies in several industries because of its breadth and scope. 

For example, the FCC broadly interpreted the TCPA by finding that an “automac telephone dialing system” — an “autodialer” in TCPA jargon — includes every dialing system that has the capacity to store or produce and dial random or sequenal phone numbers. By this definion, every modern cell phone is an autodialer subject to TCPA restricons.

The FCC also ruled that a caller cannot restrict in a contract with the consumer (or otherwise) the manner in which the consumer could revoke her or his consent to receive calls. Under the FCC’s ruling, a consumer may revoke consent by any reasonable means.

Furthermore, the FCC ruled that a caller must receive consent of the current owner of a cell phone number before making mulple calls to that number, even if the number had been reassigned from an earlier owner who had given consent. The FCC ruled that “there are soluons in the marketplace” to inform callers when numbers have been reassigned.

Defendants in TCPA cases around the country have been asking trial courts to stay class acon ligaon pending the D.C. Circuit’s ruling. On November 30, 2017 in Kotylar v. University of Chicago Medical Center (N.D. Ill.), Chief Judge Rubén Casllo issued a stay of this suit against a hospital by a class acon plainff who claims that the hospital repeatedly robocalled her to try to collect a debt that she did not owe. Similarly, on November 8, 2017 in Burnett v. Ocwen Loan Servicing, LLC, a consolidated proceeding of seven separate class acons also pending in the Northern District of Illinois, the plainffs claim that the defendant loan servicer made automated calls to the class members without consent. The court stayed the proceeding pending a ruling in ACA Internaonal.

The Point: The D.C. Circuit should rule soon on an important TCPA case. Courts are reluctant to make disposive rulings in TCPA cases unl the D.C. Circuit rules.