By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that the statutory ban on robocalls is not limited to messages that constitute telemarketing.
At issue was an interpretation of the scope of the Telephone Consumer Protection Act (“TCPA”) which provides, in part:
“It shall be unlawful for any person...to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice…to any telephone number assigned to a...cellular telephone service.”
District Court Judge Michael W. Fitzgerald of the Central District of California dismissed an action brought by Granada Hills Insurance consultant Jonathan Loyhayem who received a job-recruitment message on his cell phone. Fitzgerald dismissed the action, without leave to amend, based on an implementing regulation promulgated by the Federal Communications Commission which makes reference to “advertising or telemarketing.”
Circuit Judge Paul J. Watford said in yesterday’s opinion, for a three-judge panel:
“We agree with Loyhayem that the district court misread both the TCPA and the implementing regulation. As for the Act itself, it does not prohibit making robocalls to cell phones only if the calls involve advertising or telemarketing. The applicable statutory provision prohibits in plain terms ‘any call,’ regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called….Loyhayem adequately alleged that the call he received was not made for emergency purposes…, and that he did not expressly consent to receiving it. So, at least as far as the statute is concerned, Loyhayem has stated a valid claim for violation of the TCPA.”
The FCC regulation, he said, is only intended “to impose a heightened consent requirement for the subset of robocalls that involve advertising or telemarketing because the agency determined that, as to those calls, the existing consent requirements had proved ineffective in protecting consumers’ privacy interests.”
The case is Loyhayem v. Fraser Financial & Insurance Services, 20-56014.
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