Those operating in the telemarketing space likely know of Craig Cunningham, a prolific filer of Telephone Consumer Protection Act ("TCPA") lawsuits. The sheer number of Cunningham TCPA cases brought in recent years has inevitably led to decisions that make law, some good and some bad insofar as the industry is concerned. Recently, he prevailed in a decision issued by the United States District Court for the Eastern District of Texas that may make it more difficult for marketers to defend TCPA suits in that jurisdiction.
What are the implications of the Cunningham TCPA Decision?
Cunningham filed the subject lawsuit in connection with his receipt of a single missed phone call to his cellphone, which he alleged was placed through use of an autodialer. The defendant, Radius Global Solutions, LLC ("Radius"), moved to dismiss the lawsuit, arguing that receiving one missed call does not give rise to the constitutional standing required in order to bring a TCPA lawsuit in federal court. Radius pointed to a recent case from the United States Court of Appeals for the Eleventh Circuit, Salcedo v. Hanna, to support its argument. In Salcedo, the Eleventh Circuit concluded that receipt of a single text message was insufficient for constitutional standing. However, the Cunningham court disagreed, finding that there is a meaningful distinction between a text message and a missed call, particularly when the missed call was placed from a local area code.
The Court stated that "[i]t only takes one glance at a text message to recognize it is for an extended warranty for a car you have never owned or a cruise you have won from a raffle you never entered. A missed call with a familiar area code, on the other hand, is more difficult to immediately dismiss as an automated message." The Court believed that the sufficiency for standing was buttressed by Cunningham's claim that he had wasted his time and money trying to determine who called him by dialing the number from which he received the missed call. As a result, the Court denied the motion to dismiss and will permit Cunningham to prosecute the TCPA claims against Radius.
Defending a Cunningham TCPA Lawsuit
In today's climate, the risk of being named in a TCPA lawsuit abounds, particularly with a plaintiff as adept at filing them as Craig Cunningham. The key to minimizing the risk of being on the receiving end of a Cunningham TCPA lawsuit is to create and implement robust telemarketing compliance practices. To that end, all businesses in the marketing space should work closely with experienced telemarketing counsel to ensure that they and their marketing partners remain compliant with evolving state and federal telemarketing laws.
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