Duane Morris Class Action Review - 2023 - Report - Page 355
“telemarketing” are lawful as long as the called party has provided “prior express
consent.” 47 C.F.R. § 64.1200(a)(1)-(2). Second, prerecorded calls that do include
“telemarketing” require “prior express written consent.” Id. at § 64.1200(a)(2) (emphasis
added). Prior express consent is a lower threshold insofar as a called party generally
provides such consent simply by giving their phone number to a business in connection
with a transaction. Prior express written consent, by contrast, is harder to obtain – to
provide such consent, a party must sign a written agreement that “clearly authorizes”
the caller to send “telemarketing messages using a . . . prerecorded voice.” Id. at §
64.1200(f)(9). The FCC has also created several exceptions to the rule that a
telemarketing call requires prior express written consent. Id. at § 64.1200(a)(2). For
example, under the “health care message” exception, a telemarketing call that “delivers
a health care message” requires only prior express consent, not prior express written
consent. Id. at § 64.1200(a)(2).
After the Supreme Court’s ruling in Duguid, courts across the country are grappling with
how to properly define an ATDS and the proper stage of the litigation to resolve that
question. For example, in 2022, the Third Circuit addressed the definition of an ATDS
when upholding the grant of summary judgment in the defendant’s favor in Panzarella,
et al. v. Navient Solutions, Inc., 2022 WL 2127220 (3d Cir. June 14, 2022). In
Panzarella, the plaintiff asserted that the defendant violated the TCPA by calling the
plaintiff’s cellphones without prior express consent. The defendant serviced the
plaintiff’s loans, and the plaintiff provided the phone numbers of his mother and brother
on his loan application. When delinquent on his loans, the defendant allegedly called
the plaintiff’s mother and brother multiple times. The defendant used dialing software
equipment developed by another company to call them. Although this software could be
classified as an ATDS, the defendant chose the software “campaign” that used
information from the defendant’s own internal database of account information rather
than computer-generated number tables. Thus, the Third Circuit upheld the grant of
summary judgment because the plaintiff could not maintain that the defendant used an
ATDS in violation of the TCPA.
After Duguid, consumer litigation trends have emerged focusing on marketing to minors,
such as a recent putative class action alleging that a company sent text messages to a
minor without valid consent under the TCPA. In Hall, et al. v. Smosh Dot Com, Inc.,
2022 WL 2704571 (E.D. Cal. July 12, 2022), the plaintiff asserted that her son was
legally incapable of providing the consent necessary under the TCPA because he was
13 years old at the time in order to receive messages offering discounts on
merchandise through its online store.
Because of Duguid, more state laws – which are similar to the federal TCPA law – are
emerging. For example, Florida’s mini-TCPA statute became effective July 1, 2021 and
includes a definition of an ATDS as a “system for the selection … of telephone
numbers.” Fla. Stat. Ann. § 501.059.
The narrow definition of ATDS established by Duguid has created a more difficult path
to recovery and success under the TCPA. Duguid has prompted the predicted results of
354
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
