Posts tagged ‘No. 17-15320’

Just What Is a Robocall Anyway?

As really hardcore readers of this blog know, my wife has suggested that I am a beater of dead horses. While I respectfully disagree some issues really do get under my skin and right now one of those is the recent ruling by the FCC banning robocalls. A recent decision by the Court of Appeals for the 9th Circuit underscores that the FCC did not ban robocalls. Instead, it made it even more difficult to reach out to members using equipment that could make robocalls. I’ve explained this before but the 9th Circuit decision underscores just how unworkable the 1991 statute has become. Duguid v. Facebook, Inc., No. 17-15320, 2019 WL 2454853, (9th Cir. June 13, 2019)

When Congress decided to clamp down on unsolicited marketing phone calls it decided to do this by placing restrictions on the equipment used to make such phone calls. Consequently the TCPA’s consent requirements are triggered any time “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 USC 227(a)(1)(A).

The plaintiff in this case brought a claim under the TCPA after receiving several unsolicited messages for Facebook even though he belongs to that rare group of people such as your faithful blogger who has never belonged to Facebook and never will. No one seems to know how or why he got these messages. In seeking to dismiss this lawsuit, Facebook made a frontal assault on the breath of the statute and the way some courts and regulators have chosen to interpret it. Specifically it complained that under the existing interpretation of the TCPA it could be understood to include smart phones because they can store numbers and use automated response technology. Consequently, any use of a smart phone triggers the TCPA.

In rejecting Facebook’s argument, the 9th Circuit basically said that the statute says what it says and if it is being interpreted too broadly then this is an issue for Congress to address and not the courts. It explains that the text of the statute “provides no basis to exclude equipment that stores numbers including cell phones.” In other words, if you are calling up your member to inquire about a late bill payment or you are emailing a member to tell them about a loan product you think they may be interested in, the TCPA is implicated unless you are using a roto dialer.

Now why does this annoy me so much? Because despite of the uncertainty regarding the proper interpretation of the TCPA, the FCC rushed out regulations allegedly clamping down on robocalls. But this simply isn’t true. What the FCC actually did was clamp down on the use of equipment which could be used to make robocalls. But that doesn’t fit as neatly into a headline. It really is time for Congress to clean up this mess but then again the election is a mere year and a half away. No time for any work to get done.

One Down One To Go

Around 9:30 last night a weary Assembly passed legislation giving credit unions the right to participate in banking development districts for the first time since the legislation was passed in 1997. It now goes on to the Governor for his signature. Passage of the bill is a tribute not only to the tenacity of credit unions but to pioneering institutions like Lower East Side Federal Credit Union in Manhattan which were created specifically to address the needs of consumers who found themselves in banking deserts as banks began to contract branches.

As for the Holy Grail, our municipal deposit bill is still in the Assembly Ways and Means Committee. We will keep you posted on developments throughout the day. It still looks as if the legislature will be in town beyond today but we won’t know for sure until an official announcement is made. We will keep you updated on developments throughout the day. Let’s keep our fingers crossed.

June 19, 2019 at 8:43 am 2 comments

Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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