Petitioners iFixit, Public Resource and Make Community “seek to dramatically rewrite federal law and agency rules by destroying the copyright” to the standards development organizations’ standards, said 17 SDOs in an amicus brief Tuesday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit in support of the FCC.
Consumers' Research defended its position Tuesday to the U.S. Supreme Court that Congress and the FCC violated the nondelegation doctrine through the Universal Service Fund contributions mechanism (see 2405070042).
Twilio, a cloud communications company, “essentially bridges the gap between web-based applications and the telephone network,” but in so doing, it has been originating “illegal robocall traffic” for years, alleged Michael Anthony’s Telephone Consumer Protection Act complaint Friday (docket 3:24-cv-02999) in U.S. District Court for Northern California in San Francisco. Twilio has initiated hundreds of calls to Anthony’s cellphone, in violation of the TCPA, alleged his complaint. Though Anthony notified Twilio “countless times” that he listed his cellphone with the national do not call registry in May 2004, Twilio “continually harassed him by transmitting unlawful text messages and making illegal call after illegal call,” it said. The FCC in January 2023 determined that Twilio was originating illegal robocall traffic on behalf of one or more of its clients, it said. In its cease-and-desist letter, the FCC “mandated that Twilio take steps to address the illegal traffic, and take steps to prevent Twilio’s network from continuing to be a source of illegal robocalls,” it said. The FCC gave the company the “potentially devastating ultimatum” that failure to comply with the commission’s corrective measures “may result in downstream voice service providers blocking all of Twilio’s traffic, permanently,” it said. Twilio nevertheless refuses to implement a systemwide block to Anthony’s cellphone and continued to transmit, countless unlawful telemarketing calls and text messages to his cellphone, said his complaint. For example, in 2022, the Pennsylvania resident received prerecorded calls and text messages from a company called Fulcrum Home Solutions, but without his consent, it said. Anthony contacted Fulcrum, which “expressly identified Twilio as the service being used to generate prerecorded calls in violation of the TCPA,” it said. Despite the plaintiff bringing this to Twilio’s attention, the company “kept inundating him with unsolicited calls and text messages,” it said. Twilio acknowledges in its public filings with the SEC that its platform technology allows mass text messaging campaigns that violate the TCPA, said the complaint. Twilio’s October 2016 S-1 filing said that the company faces a risk of litigation resulting from “customer misuse” of its software to send unauthorized text messages in violation of the TCPA: “If we do not comply with these laws or regulations or if we become liable under these laws or regulations due to the failure of our customers to comply with these laws by obtaining proper consent, we could face direct liability.” Twilio knew its application program interface and its servers “were being used to violate the TCPA and, indeed, aided in the misuse of its API and servers,” as Anthony “continually notified Twilio of its malfeasance,” said the complaint. The defendant’s conduct “violates several sections of the TCPA,” it said. Anthony suffered injuries and is entitled to a minimum of $500 in damages for each violation of the TCPA, and up to $1,500 if Twilio’s violations are determined to be “knowing or willful,” it said.
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.
Kelli Davies brought suit against the Bank of Missouri for its “abusive and outrageous conduct in connection with debt collection activity,” in violation of the Telephone Consumer Protection Act and California’s Rosenthal Fair Debt Collection Practices Act, said her complaint Wednesday (docket 8:24-cv-01051) in U.S. District Court for Central California in Santa Ana. The bank received no fewer than seven notices revoking Davies’ consent to be contacted by prerecorded messages, yet it still called and otherwise contacted her more than 100 separate times, alleged the complaint. The TCPA was designed to prevent calls like those placed to the plaintiff, and to protect the privacy of citizens like her, it said. By enacting the TCPA, Congress “intended to give consumers a choice as to how corporate entities may contact them and to prevent the nuisance associated with automated or prerecorded calls,” it said. A California resident, Davies opened a Fortiva credit card account issued by the Bank of Missouri sometime in early 2021. The bank has been attempting to collect on a debt that originated from monetary credit that was extended primarily for personal, family or household purposes, and was therefore a consumer credit transaction within the meaning of the Rosenthal Act, said the complaint. Davies eventually became financially unable to continue making the monthly payments on her account, and the bank began contacting her “to inquire about the status of the account and to collect on the payments that were no longer being made,” it said. Davies sent the bank her first notice in May 2023 withdrawing her consent to be contacted on her cellphone, and her revocation notices to the bank continued through December, but so did the bank’s collection calls, it said. The bank would call the plaintiff numerous times each day demanding payment on the account, it said. Davies initiated a complaint against the bank with the American Arbitration Association on Feb. 21, but the bank failed to timely pay the arbitration fees as required under California law, said the complaint. The plaintiff’s counsel confirmed with the AAA on May 8 that Davies was electing to pursue her claims in district court as a result of the bank’s failure to timely pay the arbitration fees “and in order to clear up any ambiguity regarding the lack of payment of the initial fees,” it said.
Aflac seeks the dismissal of Stewart Smith’s second amended Telephone Consumer Protection Act class action for failure to state a claim, said the insurer’s memorandum of law Tuesday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia in support of its motion to dismiss. Smith originally alleged that Aflac violated the TCPA by placing a single telemarketing robocall to his cellphone, despite his number having been listed on the national do not call registry since June 2010 (see 2402160002). Aflac filed a motion April 8 to dismiss Smith’s first amended complaint for failure to state a claim (see 2404090028), said the memorandum. The plaintiff didn’t respond to that motion, but instead, nine days after the deadline to respond had elapsed, he filed a second amended complaint “in an apparent attempt to cure the deficiencies” that Aflac identified in the first amended complaint, it said. But the second amended complaint “sets forth only a few new allegations, most of which are generalized and non-specific,” it said. For largely the same reasons set forth in Aflac’s prior motion to dismiss, the court should dismiss Smith’s second amended complaint with prejudice, it said. Though the plaintiff now alleges that he received more than one call, he still doesn’t allege facts to support his “conclusory assertion” that Aflac itself or someone acting on Aflac’s behalf placed those calls, said the memorandum. His entire theory of liability against Aflac rests on the “single, conclusory allegation” that Aflac placed the calls because an automated message would play indicating the call was from Aflac or that a live caller would tell Smith that the call was from Aflac, it said. But Smith doesn’t allege “any details whatsoever about these calls to support the notion that Aflac was responsible,” it said. For example, he doesn’t identify the number that called him, describe how the live caller identified himself or herself, detail what was said during the live calls or during the prerecorded message, or provide any other facts that could identify Aflac as the caller, it said. Nor does Smith explain how any of the purported calls “were dispositioned,” that he identified the phone numbers that placed the calls as being connected to Aflac, that he spoke with a company representative or agent initially or following a prerecorded message, or that he received a quote or other documentation from the insurer after any calls, it said. Because Smith doesn’t allege sufficient facts to establish that there was a TCPA violation or that Aflac was involved at all, the court should dismiss the second amended complaint under Rule 12(b)(6), with prejudice, it said.
Trinity Broadcasting Network knowingly disclosed Leah Smith's personally identifiable information (PII) to Meta, said her March 18 Video Privacy Protection Act class action in California Superior Court for Orange County, removed Tuesday to U.S. District Court for Central California (docket 2:24-cv-04030).
Sun Basket promotes its ready-to-serve meals by initiating thousands of text solicitations to cellphones and residential phones nationwide without consumers’ consent, alleged an April 16 Telephone Consumer Protection Act complaint in Washington County Superior Court in Rhode Island, removed Monday (docket 1:24-cv-00186) to U.S. District Court for Rhode Island. Plaintiff Christopher Laccinole personally listed his cellphone number on the national do not call registry at least two years before he started receiving Sun Basket’s text-message solicitations, said his complaint. The Narragansett, Rhode Island, resident mailed Sun Basket a certified letter to its headquarters in San Jose demanding that the text messages stop, it said. But despite Laccinole’s “clear and unmistakable certified mail request to be left alone,” Sun Basket continued initiating additional text message solicitations to his cellphone, it said. Sun Basket used an automatic telephone dialing system (ATDS) with a random or sequential number generator to initiate the texts, it said. The text messages originated from SMS short code 44763, the complaint said: “A text message containing an SMS short code is characteristic of a message sent using an ATDS that dials a large volume of telephone numbers from a prepared list.” Sun Basket’s unlawful conduct demonstrates that it doesn’t maintain a written policy for maintaining an internal DNC list, nor has it “informed and trained personnel engaged in making text messages on the use of the do-not-call list,” said the complaint. Laccinole “falls in the category of consumers who seek redress to stop unwanted telephone solicitations,” it said.
BookTix, a virtual box office for local community performances, conceals processing fees until the final moments of checkout, in violation of New York’s “all-in pricing” mandate, alleged a fraud class action Monday (docket 7:24-cv-03670) in U.S. District Court for Southern New York in White Plains.
EchoStar transferred billions of dollars’ worth of assets from Dish Network and its DBS subsidiary “out of reach of existing creditors, in exchange for nothing” in a “brazen series of related transactions” designed to protect controlling shareholder and Dish CEO Charlie Ergen, alleged a fraud complaint (docket 1:24-cv-03646) Monday by U.S. Bank Trust Co., National Association, in New York Supreme Court in Manhattan.