Anyone that engages in telemarketing must transmit caller identification and there is a private right of action under the TCPA

I don't always agree with judges' rulings, but many judges do strive to follow the law and will reverse themselves when they see they got the law wrong.

Such is the case with the recent opinion issued in Dobronski v. SelectQuote 2025 WL 900439 (E.D. Mich February 28, 2025).

At issue is 47 CFR § 64.1601(e) Any person or entity that engages in telemarketing, as defined in section 64.1200(f)(10) must transmit caller identification information.

(1) For purposes of this paragraph, caller identification information must include either CPN or ANI, and, when available by the telemarketer's carrier, the name of the telemarketer. It shall not be a violation of this paragraph to substitute (for the name and phone number used in, or billed for, making the call) the name of the seller on behalf of which the telemarketing call is placed and the seller's customer service telephone number. The telephone number so provided must permit any individual to make a do-not-call request during regular business hours.

(2) Any person or entity that engages in telemarketing is prohibited from blocking the transmission of caller identification information.

Not every telemarketing law has a private right of action and that was the nature of this dispute, could Mr. Donbronski enforce 47 CFR § 64.1601(e) under 47 U.S. Code § 227(c)(5).

Dkt 55 - Dobronski v Selectquote.pdf

Download PDF • 171KB

The TCPA is split into many subsections, but only two provide private rights of action. The first applies only to regulations promulgated to enforce § 227(b), and the second applies only to regulations promulgated to enforce § 227(c). 47 U.S.C. § 227(b)(3), (c)(5). The statute thus strongly suggests that there is no private right of action to enforce other subsections of the Act . . . The FCC often elects not to identify under which statutory subsection it promulgates TCPA-related rules. See generally 47 C.F.R. § 64.1200. That makes putting regulations into the right bucket for purposes of the private rights of action challenging. Here, however, there is an easy answer. 47 C.F.R. § 1601(e) is about caller identification information. Neither § 227(b) nor (c) mention caller identification information, and caller identification information does not fit cleanly into either automated telephone equipment (§ 227(b)’s focus) or subscriber privacy rights (§ 227(c)’s focus).

The court saw that 47 C.F.R. § 1601(e) is about caller identification, § 227(e) is about caller identification, equated the two, found that § 227(e) does not have a private right of action, and dismissed the claim.

Dobronski wasn't going to take that laying down and he filed a persuasive motion for reconsideration that resulted in the trial court reversing itself in an opinion that should be required reading for telephone consumer act pro se plaintiffs.

Dkt 61 - Dobronski v Selectquote.pdf

Download PDF • 132KB

Dobronski’s motion accurately pointed out a mistake The Court wrongly suggested, as part of its reasoning to reach the conclusion that 47 C.F.R. § 64.1601(e) cannot be privately enforced, that the regulation was promulgated to enforce 47 U.S.C. § 227(e). Upon review of the persuasive authority from within and without this district as well as the statutory and regulatory scheme, the Court concludes that the minority view—i.e., that 47 U.S.C. § 227(c)(5)(B) provides a private right of action for violations of 47 C.F.R. § 64.1601(e)—is correct

Again, hats off to the judge for pursuing the law, not what he would like the law to be. The judge granted dismissal of Dobronski's claim because the court thought 47 C.F.R. § 1601(e) was promulgated under § 227(e) with no private right of action. But that was impossible because 47 C.F.R. § 1601(e) was written long before § 227(e), so 47 C.F.R. § 1601(e) had to have been promulgated under a different section of the TCPA. And the court recognized there are only a handful of TCPA subsections that allow for the FCC to promulgate regulations:

• § 227(b)(2) authorizes the FCC to implement requirements that relate to the use of automatic telephone dialing systems

• § 227(c) authorizes the FCC to promulgate rules relating to the “need to protect residential telephone subscribers’ privacy rights”

• § 227(d)(1)–(3) allow regulations technical and procedural standards related to fax machines, automatic telephone dialing systems, and “systems that are used to transmit any artificial or prerecorded voice message”

• § 227(e)(3) provides for regulations relating to misleading or inaccurate caller ID

• § 227(i) allows for the FCC to promulgate regulations to streamline information sharing with the FCC related to violations

And by a process of elimination, arrived at the conclusion that 47 C.F.R. § 1601(e) could only have been promulgated under § 227(c):

§ 227(e)(3)[and 227(i)] is quickly eliminated as the statutory basis for the promulgation of § 64.1601(e) because the TCPA was amended to include § 227(e) only years after the FCC promulgated § 64.1601(e) . . . The FCC could not have promulgated a regulation pursuant to authority that it did not yet have . . . Both subsections of § 227(d) as well as § 227(b)(2) suffer from a similar defect—want of legislative authorization sufficient to support § 64.1601(e). Section § 64.1601(e) imposes a caller ID requirement on all telemarketing calls. But subsection § 227(b)(2) focuses only on calls made using automatic telephone dialing systems. Section 227(d)(1) relates only to fax machines and automatic telephone dialing systems, (d)(2) relates only to fax machines, and (d)(3) applies only to artificial and prerecorded voice messages. It is thus unclear from where in those subsections the FCC gained authority to create a blanket requirement applying to all calls, including those that do not relate to automatic dialing, fax machines, or artificial or prerecorded messages.

The court came to the only option left: The last remaining option—and the only subsection with the breadth of scope to cover § 64.1601(e)—is § 227(c).

Subsection 227(c) required the FCC to “compare and evaluate alternative methods and procedures (including the use of electronic databases, telephone network technologies[)] . . . for their effectiveness in protecting such privacy rights.” Then the FCC had to “develop proposed regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish the purposes of this section.” Afterward, the FCC would promulgate regulations to support consumer privacy rights. Intuitively, a caller ID requirement seems to use a telephone network technology to help protect privacy rights. And § 227(c) is the only possible source for § 64.1601(e).

This is powerful for multiple reasons, perhaps the most by who 47 CFR § 64.1601(e) applies to: Any person or entity that engages in telemarketing, as defined in section 64.1200(f)(10) must transmit caller identification information. 64.1200(f)(10) is now 64.1200(f)(13):

The term telemarketing means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

No Established Business Relationship exemption, and no consent exemption. It doesn't matter if they faked the opt in, they need to transmit caller ID information including the name of the telemarketer.

This puts telemarketers on the horns of a dilemma, do they identify themselves as required by 47 CFR § 64.1601(e) and run the risk that the fake opt in won't protect themselves from a telemarketing lawsuit for unwanted calls, or do they violate 47 CFR § 64.1601(e) as part of hiding who they are, but when caught it doesn't matter that they have the fake opt in, they violated 47 CFR § 64.1601(e).

Few have seen 47 CFR § 64.1601(e) litigated because few have tried and fewer have succeeded to get past a motion to dismiss. It should be litigated more now, and the learning how should start.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

Return to blog articles