Telemarketers must transmit caller identification and there is a private right of action under the TCPA - § 64.1601(e)

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

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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

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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. For example, in Newell v. JR Capital, 2:25-cv-01419-GAM (E.D. Pa. July 16 , 2025), Mr. Newell received received five telemarketing text messages from Defendant JR Capital, advertising business equipment and vehicles. The caller identification transmitted alongside the texts included the geographic origin of the message, but did not include JR Capital’s name or the name of a hired telemarketer.

Mr. Newell sued, alleging violations of a regulation establishing caller identification (“caller ID”) requirements, 47 C.F.R. § 64.1601(e)(1) and other telemarketing law violations. JR Capital moved to dismiss the 47 C.F.R. § 64.1601(e)(1) claim. Spoiler alert, JR Capital lost the motion.

This Newell lawsuit was novel over Dobronski because of the text messages, so not only is this a great outcome for buttressing Dobronski, but for extending Dobronski to text messages.

Newell v JR Capital LLC.pdf

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In sum, the administrative history unequivocally demonstrates that caller ID is a network technology, assessed by the FCC as one available method to protect residential telephone subscribers’ privacy rights under § 227(c). See Dobronski v. Selectquote Ins. Servs., No. 23-12597, 2025 WL 900439, at *3 (E.D. Mich. Mar. 25, 2025) (“The agency record thus suggests that caller ID requirements are a telephone network technology or other alternative that the FCC required in an attempt to help consumers enforce their privacy rights against telemarketers. That places § 64.1601(e) in the heartland of § 227(c).”). JR Capital further asserts that Mr. Newell’s claims must be dismissed because the text messages include “a website link with JR Capital’s name on it,” and therefore comply with § 64.1601(e) . . . Mr. Newell included screenshots of the five text messages at issue from JR Capital in his Amended Complaint. Am. Compl. ¶ 26. Four texts have a customer service call-back number, complying with that requirement of § 64.1601(e). However, none of the texts include the name of the seller or telemarketer – in this case, JR Capital – as required. Each text includes a website link to “jrwcap.com/equipment.” But this is inadequate under § 64.1601(e). First, the website domain “jrwcap.com” is different than the company’s name “JR Capital.” This url is not “the name of the seller,” as required. 47 C.F.R § 64.1601(e)(1). And though clicking the link immediately leads you to JR Capital’s website, this puts the onus – and risk of being the target of malware and phishing scams – on the recipient of the text.

*** Update

Another court in Barton v. Bright Solar Mktg. LLC, 2025 U.S. Dist. LEXIS 200521, 2025 LX 411554 has held there is a private right of action under 47 C.F.R. § 64.1601(e):

BSM next argues Plaintiff's claim that Defendants violated 47 C.F.R. § 64.1601(e) should also be dismissed because the regulation does not confer a private right of action. The regulation provides that "[a]ny person or entity that engages in telemarketing . . . must transmit caller identification information." 47 C.F.R. § 64.1601(e). Plaintiff alleges that "[i]n almost all calls the callers transmitted fake numbers" and "the callers had the ability to transmit the name of the telemarketer and intentionally chose not to." District courts have typically found that 47 C.F.R. § 64.1601(e) does not create a private right of action. Meyer v. Capital Alliance Group, Case No. 15-CV-2405-WVG, 2017 WL 5138316 (S.D. Cal. Nov. 6, 2017) (analyzing the TCPA's scheme and finding §64.1601(e) "does not expressly convey a private right of action" because it "appears to support consumers' enforcement efforts under the TCPA's subsection c, rather than to create a separate mechanism upon which a consumer can make an actionable claim.") (internal citation omitted); Griffin v. American-Amicable Life Ins. Co., Case No. 6:24-cv-00243-MC, 2024 WL 4333373, (D. Or. Sept. 27, 2024) (citing with approval "the thoughtful analysis of" Meyer and other courts and holding that "Plaintiffs may not pursue a private right of action . . . for alleged violations of 47 C.F.R. § [64].1601(e)."); Dobronski v. Selectquote Ins. Servs., 462 F. Supp. 3d 784, 790 (E.D. Mich. 2020) (citing Meyer with approval and finding that "[a]bsent any authoritative basis for a private cause of action for 'spoofing' under this federal communications regulation [§ 64.1601(e)(1)], the Court is disinclined to create one here."). Plaintiff argues § 64.1601(e) does create a private right of action, relying on two recent district court decisions. In a separate Dobronski v. SelectQuote Ins. Servs. ("Dobronski 2'), the court found that the relevant question with respect to § 64.1601(e) was not whether courts should imply or create a right of action, but whether "as a matter of textual interpretation, § 64.1601(e) falls within the scope of an express cause of action that Congress has already created." 773 F.Supp.3d 373, 380 (E.D. Mich. 2025). The court first identified the potential subsections of 47 U.S.C.§ 227 under which § 64.1601(e) was promulgated and then eliminated each subsection that could not have been used as authority to promulgate § 64.1601(e). By process of elimination, the court concluded only 47 U.S.C. § 227(c) could have been used to promulgate § 64.1601(e) because it was "unclear from where in [47 U.S.C. § 227's other] 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." Accordingly, it found the private right of action in 47 U.S.C. § 227(c)(5) was available for violations of § 64.1601(e). Similarly, the court in Newell v. JR Capital, LLC found § 64.1601(e) was "promulgated under § 227(c), and that a private right of action exists." Case No. 25-1419, 2025 WL 2004706, (E.D. Pa. July 16, 2025). The court in Newell found that Congress "believed that it was important to allow private citizens to enforce certain provisions of the TCPA, and expressly created a cause of action under § 227(c) of the Act." The court cited language in § 227(c)(5) which provides that any person "who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection" may bring "an action based on the violation of the regulations prescribed under this subsection" for damages and injunctive relief. The court concluded that "because Congress expressly and unequivocally created a private cause of action based on a violation of the regulations prescribed under [§ 227(c)], there is a private cause of action to enforce violations of § 64.1601(e)." There is no controlling authority concerning whether § 64.1601(e) confers a private right of action and the Court acknowledges there is a difference of opinion among district courts on this question. Nevertheless, the Court finds more persuasive Dobronski 2 and Newell. Accordingly, Plaintiff may include in the new amended complaint a claim based on an alleged violation of 47 C.F.R. § 64.1601(e).

Barton v. Bright Solar Mktg. LLC_2025 U.S. Dist. LEXIS 200521.Pdf

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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.

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