Once is an Anecdote, but Twice is a Trend: Another court addresses caller ID requirements under the TCPA

Another court has addressed the requirement under the Telephone Consumer Protection Act ("TCPA") for telemarketers to transmit caller identification information. This is the second case this year ("Dobronski") to address this issue. Therefore, we can fully expect to see more of these cases in the future.

In Newell v. JR Capital, LLC (memorandum here), the Court found that a private cause of action for failure to include caller id information exists, this also applies to text messages, and that Newell had adequately pled "the text messages do not contain the required caller identification." The implementing TCPA regulation in question (47 C.F.R. 64.1601(e)) states "any person or entity that engages in telemarketing...must transmit caller identification information. For purposes of this paragraph, caller identification information must include either CPN ("Calling Party Number") or ANI (automatic number identification), and, when available by the telemarketer's carrier, the name of the telemarketer."

While courts have been mixed to find personal liability under Section 64.1601(e), the recent Dobronski case (linked above) opened the door again. The Court in Newell relied heavily on the Michigan case's analysis as well as a thorough analysis of the FCC's historical rule making around this section. This analysis led to the Court stating that caller identification is the sort of "network technology" from which Congress was intending to protect consumers when it enacted 47 U.S.C. Sec. 227(c) which grants a private right of action.

This ruling, however, goes against the prevailing wisdom that failure to include caller identification does not allow for a private right of action. The case predominantly relied upon for that prevailing wisdom is Worsham v. Travel Options, Inc., 2016 WL 4592373 which was subsequently affirmed by the Fourth Circuit (with no analysis by the Circuit Court). In Worsham, the district court stated "the FCC's rule in § 64.1601(e) appears to support consumers' enforcement efforts under the TCPA's subsection c, rather than to create a separate mechanism upon which a consumer can make an actionable claim." (Emphasis in original).

The Newell disagrees and, combined with the Dobronski case in Michigan, has now created a paradigm shift for TCPA. However, this is not the only issue with this case. The Newell court also stated the requirement for caller identification applies to telemarketing being performed by text message. This is not surprising since "caller identification information" is defined in the regulations as "information provided by a caller identification service regarding the telephone number of, or other information regarding the origination of, a call made using a voice service or a text message sent using a text messaging system." 47 C.F.R. 64.1600(c)

So, there are three takeaways from my vantage point for telemarketers:

1. While this might be the minority view, it's now a trend and plaintiff's lawyers will be emboldened to continue fighting this issue.

2. Therefore, it is IMPERATIVE you are using caller id on your calls. The regulations requires the telemarketer to display their phone number and name OR "the name of the seller on behalf of which the telemarketing call is placed and the seller's customer service telephone number."

3. Practically, it's going to further limit character count on text messages because the telemarketer's name will have to be displayed. The Court in Newell stated that the "url is not the 'name of the seller', as required." Therefore, the shortened versions don't appear to be sufficient.

This will continue to be a story throughout the rest of the year. But, at least now, this trend doesn't seem to be stopping.