Texas Court Finds Private Right of Action for Do Not Call Violation

TCPA Connect

A federal court in Texas allowed a plaintiff to bring a claim for a defendant’s failure to maintain a do not call list, joining a growing number of jurisdictions to recognize a private right of action for such a claim under the Telephone Consumer Protection Act (TCPA).

Shannon Powers sued One Technologies, a web-based business that provides consumers with credit scores, credit education analysis tools, and identity protection and mitigation products, for violating the TCPA.

She—along with two other named plaintiffs—alleged that the company ran afoul of the statute by not having or maintaining a procedure for maintaining an internal do not call list as required by 47 C.F.R. § 64.1200(d).

One Technologies moved to dismiss, arguing that § 64.1200(d) was promulgated under § 227(d) of the TCPA, which provides no private right of action.

U.S. District Court Judge Brantley Starr denied the motion, pointing out that several courts have disagreed, including the Third, Sixth and Eleventh U.S. Circuit Courts of Appeal, as well as district courts within the Fifth Circuit.

According to those courts, § 64.1200(d) was promulgated to protect privacy rights under 47 U.S.C. § 227(c), and thus § 227(c)’s private right of action reached violations of § 64.1200(d).

“As a sister court has explained, the purpose of § 64.1200(d)’s do-not-call-list requirement and the procedure to maintain the list are to ‘further the goal of protecting subscribers from unwanted telemarketing calls and thus align with the purpose of § 227(c),’” the court said.

The court followed this reasoning and held that the private right of action contained in § 227(c) reaches violations of § 64.1200(d).

However, the court granted One Technologies’ motion to dismiss based on its alternative argument: that even if § 64.1200(d) provided a private right of action, One Technologies did not initiate the text messages received by the plaintiffs, who failed to make sufficient allegations of vicarious liability.

“Here, the plaintiffs have conclusorily asserted that the agents of One Technologies are liable, but have not even identified the agents or much less pled an agent-principal relationship,” the court wrote. “Federal courts routinely dismiss claims that rely upon vicarious liability at the pleading stage when insufficient facts have been alleged to establish control. Because the plaintiffs have insufficiently pled vicarious liability, the court will grant the motion to dismiss.”

The court did dismiss the claim without prejudice, giving the plaintiffs the chance to file an amended complaint.

To read the memorandum opinion and order in Powers v. One Technologies, LLC click here.

Why it matters: The Texas court joined a number of jurisdictions—including the Third, Sixth and Eleventh Circuits, as well as federal courts in North Carolina and Texas—to hold that a private right of action is available for violations of § 64.1200(d).

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