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Exceptions To The TCPA's National-Do-Not-Call-Registry Rule
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Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
To better understand the court’s holding in Watson, we briefly discuss the TCPA’s DNC rule. “Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3]” The term “telephone solicitation” is a key part of that rule. The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4] A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]
“In Waston v. Manhattan Luxury Autos., Inc.,[1] the defendant was accused of making telephone solicitations to persons registered on the DNC in violation of the TCPA.[2]” The TCPA’s DNC Rule and Applicable Exceptions
“The defendant argued that its calls fell within the DNC rule’s exceptions.” The TCPA’s DNC Rule and Applicable Exceptions
“But the court left it up to the jury to decide that issue, a decision we dig into below.” The TCPA’s DNC Rule and Applicable Exceptions
To better understand the court’s holding in Watson, we briefly discuss the TCPA’s DNC rule. “Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3]” The term “telephone solicitation” is a key part of that rule. The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4] A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]
Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
To better understand the court’s holding in Watson, we briefly discuss the TCPA’s DNC rule. “Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3]” The term “telephone solicitation” is a key part of that rule. The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4] A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]
Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
To better understand the court’s holding in Watson, we briefly discuss the TCPA’s DNC rule. “Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3]” The term “telephone solicitation” is a key part of that rule. The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4] A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]
Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
Under the Federal Communication Commission’s (“FCC”) TCPA-implementing regulations, callers are prohibited from making a “telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the” DNC.[3] “A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5]” PEIP is a bit confusing because it is referenced in two separate places in the TCPA’s DNC rule. The first reference is in the definition of “telephone solicitation,” where it states that a call made with the called party’s PEIP does not constitute a telephone solicitation.[6] The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7] The second reference to PEIP appears redundant because the type of call it describes is not a “telephone solicitation” in the first place based on the applicable definition that contains the first reference to PEIP.
The term “telephone solicitation” is a key part of that rule. The definition of “telephone solicitation” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”[4] A call that otherwise meets that definition is not considered a “telephone solicitation” if the called party provided his or her “prior express invitation or permission” (“PEIP”), or if it was made pursuant to an “established business relationship” (“EBR”) with the called party (or if the caller has a “personal relationship” with you).[5] “The second reference provides that a person will not be liable for making a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the DNC if that person “has obtained the subscriber’s [PEIP]. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone number to which the calls may be placed[.]”[7]” These two references create confusion as to whether there is a requirement that PEIP, under the TPCA’s DNC rule, must be documented in a signed, written agreement. The argument for such requirement comes from the second reference to PEIP. An argument for why there is no such requirement comes from the TCPA’s definition of “unsolicited advertisement.” The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s [PEIP], in writing or otherwise.”[8] Since Congress expressly provided that PEIP can be provided in forms other than writing, it appears clear that there is no requirement that PEIP must be in a written, signed form.
LOM’s PEIP Argument. “The first document, titled “Contract Authorization,” included language where the customers agreed to be contacted by HOM and was signed by the customers.[20]” The second document was a notice HOM provided to its customers.[22] The court found that notice to be insufficient because it did not meet the requirements for PEIP. Specifically, (1) it did not contain the customer’s telephone number he or she authorized HOM to contact and (2) the document was a notice to HOM’s customers regarding what HOM may do with its customers’ information, not an agreement between HOM and its customers.[23]
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