Thursday, August 19, 2021

FYI: 9th Cir Holds TCPA Applies to "Any Call", Not Just Marketing or Advertising Calls

The U.S. Court of Court of Appeals for the Ninth Circuit recently reversed the dismissal of a plaintiff's complaint alleging supposed violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") for placing a job-recruitment "robocall" to the plaintiff's cell phone.


In so ruling, the Ninth Circuit concluded that the plaintiff's allegations that the plaintiff pled adequate allegations to survive a motion to dismiss because the TCPA's prohibition on robocalls to cell phone numbers applies to "any call," not just marketing or advertising calls.


A copy of the opinion is available at:  Link to Opinion


The plaintiff received an allegedly unauthorized call to his cell phone in which the caller left a "job recruitment" voicemail.  The plaintiff alleged the call was placed using an automated telephone dialing system (ATDS) and an artificial or pre-recorded voice.


The plaintiff filed suit against the company identified in the voicemail, alleging that its call violated the TCPA's prohibitions against calls using "any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a . . . cellular telephone service." § 227(b)(1)(A)(iii).


The defendant caller moved to dismiss, and the trial court granted its motion, concluding that the TCPA and its relevant implementing regulation, 47 C.F.R. § 64.1200 did not prohibit calls of this nature, but only robocalls to cell phones when the calls include an "advertisement" or constitute "telemarketing," which the plaintiff recipient conceded were not included in the voicemail.  § 64.1200(f)(1), (13).  The plaintiff timely appealed the dismissal.


On appeal, the Ninth Circuit first reviewed the plain language of the TCPA, noting that the Act does not apply only to calls involving advertising or telemarketing, but plainly prohibits "any call," regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either emergency purposes or with the prior express consent of the person being called. 47 U.S.C. § 227(b)(1)(A)(iii). 


Here, the Court found that the plaintiff recipient adequately alleged that the call he received was not made for emergency purposes, and that he did not expressly consent to receiving it.  Accordingly, the Ninth Circuit concluded that he stated a valid claim for violation of the TCPA pursuant to the plain language of the statute.


Further review of the FCC's relevant implementing regulation, 47 C.F.R. § 64.1200, led the Ninth Circuit to the same conclusion. 


The relevant implementing language, which closely tracks the language of the statute, includes a qualifier that prohibits "any telephone call" made to a cell phone unless the call was made either for emergency purposes or with the prior express consent of the person being called "except as provided in paragraph (a)(2) of this section" (47 C.F.R. § 64.1200).


In granting the motion to dismiss, the trial court relied upon the paragraph (a)(2)'s separate prior express written consent requirement to a subset of robocalls made to cell phones that involve advertising or telemarketing—which differs from calls covered by paragraph (a)(1) in which prior express consent may be given either orally or in writing—as effectively removing robocalls to cell phones from the scope of the TCPA's coverage unless the calls involve advertising or telemarketing.  See 47 C.F.R. § 64.1200(a)(2); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7971 (2015). 


The Ninth Circuit disagreed with this interpretation, noting that the FCC's amendment of § 64.1200 in 2012 to add paragraph (a)(2) served to impose a heightened consent requirement only for the subset of robocalls that involve advertising or telemarketing because the agency determined that, based upon findings that the existing consent requirements proved ineffective in protecting consumers' privacy interests, but expressly maintained the existing consent requirement in paragraph (a)(1) for all other robocalls made to cell phones. 77 Fed. Reg. 34,233 (June 11, 2012), 34,235, ¶ 7, 34,236, ¶ 11 (noting that the Commission was "maintain[ing] the existing consent rules for non-telemarketing, informational calls"); id. ¶ 12 (noting that "section 227(b)(1)(A) of the Act and its implementing rules continue to require some form of prior express consent for autodialed or prerecorded non-telemarketing calls to wireless numbers"). 


Thus, the Court held, the undisputed fact that the call did not involve advertising or marketing simply meant that the heightened written consent requirement imposed by paragraph (a)(2) did not apply, and the trial court erred by focusing exclusively on paragraph (a)(2) of the FCC's implementing regulation and overlooking paragraph (a)(1), which governed the allegedly violative call.


Because the recipient plaintiff adequately alleged that he did not consent to the defendant's job recruiting call orally or in writing, the Ninth Circuit ruled that his complaint pled allegations sufficient to state a claim under the TCPA.  The trial court's dismissal was reversed and the case was remanded for further proceedings.




Ralph T. Wutscher
Maurice Wutscher LLP
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