Trade Group Backs Petition for Rehearing of 9th Circuit’s TCPA Opinion

The Professional Association for Customer Engagement supports Porch.com’s Oct. 26 petition for panel rehearing and petition for rehearing en banc of the 9th U.S. Circuit Court of Appeals Oct. 12 opinion reversing the U.S. District Court for Idaho dismissal of a Telephone Consumer Protection Act suit, said the trade group's proposed amicus brief Monday (docket 20-35962).

Fifty-one home improvement contractors sued Porch.com for TCPA violations, but the district court dismissed the complaint on grounds they lacked statutory standing because as contractors, they fell outside the TCPA’s scope of protecting consumers. But because the statutory text includes not only persons, but also entities, the 9th Circuit’s three-judge panel concluded that all of the plaintiffs have standing to sue under the TCPA.

Another disputed question at trial before the district court was whether a cell phone that is used for both business and personal purposes can be a residential phone within the meaning of the TCPA. In the absence of FCC guidance on the precise question of when a mixed-use phone ceases to become a residential phone or a business phone, the 9th Circuit panel held that plaintiffs’ cell phones listed on the do-not-call registry that are used for both personal and business purposes are presumptively residential within the meaning of the TCPA.

Members of Pace, including Fortune 500 companies, call centers and charities, “routinely face abusive” TCPA litigation, said the group's proposed amicus brief. “Each instance telemarketers successfully defend themselves against one TCPA issue, crafty plaintiffs allege another TCPA issue to maximize use of the private right of action provisions,” it said.

Pace submits its amicus brief “because the panel’s decision on serious standing and interpretation issues diverges from the TCPA’s intent and current framework,” it said. The panel’s TCPA “standing framework” will not stop even the most compliant business-to-business telemarketers “from being yanked into court by money-seeking plaintiffs,” it said. “Congress never intended the TCPA to impede legitimate B2B contacts, and this Court should not impede such either.”

Pace agrees with Porch.com’s petition “that en banc review is critically needed,” said its proposed brief. “The panel decision raises exceptionally important issues for too often abused TCPA claims,” including claims for autodialed calls and claims for calls to residential lines” listed on the do-not-call registry, it said.

The panel decision on what constitutes a residential phone “should have been referred to the FCC under the primary jurisdiction doctrine,” said Pace. Congress gave the FCC authority to implement the TCPA, and the commission “has the technical and specialized skills to determine” what constitutes a residential phone “in today’s telecommunications ecosystem,” it said. The 9th Circuit’s decision “usurped the FCC’s authority at the expense of compliance-seeking telemarketers instead of referring this exceptionally important issue to the FCC,” it said.

The 9th Circuit’s holding “implements a presumption that a plaintiff’s mixed-use wireless number is residential to confer standing” under the TCPA, then shifts the burden to defendant Porch.com after discovery “to prove that the number is a business number,” said Pace. “The burden should be solely on the plaintiff to establish standing,” it said. “Plaintiffs will torture the TCPA even more at the enormous cost of telemarketers because this decision gives plaintiffs guaranteed standing.”