DOES THIS MEAN ANYTHING? Out of SDNY
The first court in the nation to expressly reject an FCC TCPA ruling following LoperBright. (Indeed, this may be the first district court ruling anywhere on any topic to reject an agency ruling following the Supreme Court’s massive ruling last Friday.
DNC (do not call lists)
very detailed article: LONG and detailed from court findings, fo look yourself:
Well the Court in Cacho v. McCarthy & Kelly 2024 WL 3293628 (S.D.N.Y. July 3, 2024) analyzed the issue and became the first court in the nation to expressly reject an FCC TCPA ruling following LoperBright. (Indeed, this may be the first district court ruling anywhere on any topic to reject an agency ruling following the Supreme Court’s massive ruling last Friday.)
Here is the court’s very through and interesting analysis:
GRINDING: Court Rejects “Sweeping Practical Consequences” to Follow FCC Lead After Chevron Deference Struck Down–But EVERYBODY Has A Lot More Work to Do Now
https://tcpaworld.com/2024/07/05/grinding-court-rejects-sweeping-practical-consequences-to-follow-fcc-lead-after-chevron-deference-struck-down-but-everybody-has-a-lot-more-work-to-do-now/
I just grabbed a few pieces
Well the Court in Cacho v. McCarthy & Kelly 2024 WL 3293628 (S.D.N.Y. July 3, 2024) analyzed the issue and became
the first court in the nation to expressly reject an FCC TCPA ruling following LoperBright. (Indeed, this may be the first district court ruling anywhere on any topic to reject an agency ruling following the Supreme Court’s massive ruling last Friday.)
But the issue was an important one–
are cellular phones residential lines for DNC purposes
under the TCPA? The FCC had held they were. If the Court disagreed, it would be a big deal.
the Defendant was a Plaintiff’s law firm. The lead supplier was calling for Camp Lejune leads.
A very common purpose of calls–at least a couple years ago. Just another reminder that Plaintiff’s law firms are NOT immune from TCPA claims.
So the big takeaway from this ruling? The Czar’s TCPA presentation at LCOC needs to be entirely re-done from the ground up to assess where the FCC’s rulings are likely vulnerable to being disregarded by the court, where the Hobbs Act will apply, and where the courts are likely to reach the same conclusions as the FCC anyway.
__ again, i just grabbed a few highlights
moar: https://tcpaworld.com/2024/07/05/grinding-court-rejects-sweeping-practical-consequences-to-follow-fcc-lead-after-chevron-deference-struck-down-but-everybody-has-a-lot-more-work-to-do-now/
Wow.
How long was that?
And what’s crazy is that’s not even the whole analysis, I just got tired of cutting and pasting.
So first, this is a GREAT analysis by the court–not to say I agree with it, but it was well thought out and plodding. Piece by piece. Brick by brick and well supported and reasoned.
But also… long.
In the old days–last last Thursday–the Court could have just cited to the FCC ruling and stopped. One line became several pages. And while this court was willing to do the work–and impressively, and quickly!–most courts will not be.
The the Supremes have now given courts a choice– do a bunch of hard work to likely arrive at the same conclusion the agency did, or just shoot from the hip.
Cacho shows just how much labor goes into a court getting the analysis done for itself, and how unrewarding it is when ultimately the court just landed where the FCC had already been. Doesn’t seem like a great use of resources.
And, of course, this is just one ruling by one judge. The next judge could come to a different conclusion.
So are cellular phones residential lines for DNC purposes? Ask your local judicial official.
Except, maybe not. Remember the Hobbs Act also comes into play in TCPA rulings under the Communications Act–and the Hobbs Act, where applicable, strips the court of the jurisdiction to do the very analysis the Cacho court just did.
So how did the Hobbs Act apply in Cacho? It didn’t:
Because the Court concludes that Plaintiff’s allegations satisfy both the plain text of the TCPA and the FCC’s implementing regulations, the Court need not address the difficult and entirely unbriefed—question of whether the Hobbs Act constrains the Court’s review of the FCC’s determination that cellphones qualify for TCPA protection.
Get it?
Because the court agreed with the FCC it did not need to consider whether or not it had to agree with the FCC. And the parties did not even address the issue–another miss by law firms that don’t really understand the TCPAWorld.
Regardless, the Cacho ruling is even more interesting–to me at least–because the court ultimately cncluded the case needed to be dismissed anyway.
The Plaintiff had failed to allege the law firm at issue actually controlled or ratified the conduct of the lead generator that had gotten it sued: