Federal court in ninth circuit rules that 47 CFR 64.120(d)(4) was promulgated under 47 U.S.C. 227(c) in big win for pro se plaintiff
- Peter Schneider
- Mar 21, 2024
- 4 min read
Updated: Jul 22
47 CFR 64.120(d)(4) is an Achilles Heal for telemarketers. Telemarketers want to hide behind fake names but (d)(4) requires them to identify themselves and who they are calling for. Telemarketers don't like it one bit, but the question used to be, was there a private right of action to enforce it?
"Identification of callers and telemarketers. A person or entity making an artificial or prerecorded-voice telephone call pursuant to an exemption under paragraphs (a)(3)(ii) through (v) of this section or any call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges."
A decade ago many courts would have said there isn't, but the law has shifted to where a majority of courts say there is. But the Ninth Circuit was a wasteland - little guidance was available to districts courts here so when TCPA lawsuit Barton v. Alleviate Tax LLC et al in the Western District of Washington pursued a claim under it, it wasn't a forgone conclusion that the pro se plaintiff would win.
But on 3/21/2024, win he did as that court agreed with the position of the majority:
"Apparently this issue has been litigated in federal courts, with the majority having found that 47 U.S.C 227(c) prevails, and a private cause of action is appropriate. This Court agrees with that majority, and Defendant's Motion should be denied as to Count 6."
The benefits of pursuing a claim under 47 CFR 64.120(d)(4) are two fold. It directly allows discovery on why they were using fake names in the first place, and it helps make the case that their violations were willful and knowing. Find out in discovery why they were using the fake business name. Find out who authorized it. It should be difficult for them to argue that using a fake name to hide their actual identity was anything but willful and knowing. Hammer on this to the court - why would a telemarketer/seller operating what they believe to be lawfully need to use a fake name on the calls instead of their true name?
If you need to make arguments to fight off a motion to dismiss your 47 CFR 64.120(d)(4) claim, the briefing on this case may be useful to you.
And let's give the pro se a hand! He brought 12 counts under various telemarketing laws. The complaint was so well plead, the defendant only could attack two counts in their motion to dismiss, and they also lost their bid to dismiss the second claim. All 12 counts survived!
And this Washington federal court's ruling that 47 CFR 64.120(d)(4) was promulgated under 47 U.S.C. 227(c) will go a long ways in other district court's in the ninth circuit.
Update: The same district has made the same finding later in 2024. Some defendants argued that 47 CFR 64.120(d)(4) was promulgated under § 227(d)(3) of the TCPA in Dawson v. Porch.Com, 2:20-cv-00604-RSL, 15 (W.D. Wash. Nov. 13, 2024). This opinion gave a nice summary of the argument against that.
The Court disagrees. Requiring callers to identify themselves and provide a telephone number or address at which they can be contacted solves more than one problem. Section 227(d)(3) of the TCPA is aimed at artificial or prerecorded voice messages. Because this technology may keep a number “in constant use and not available to receive calls from the called party,” In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8779 at ¶ 53 (1992), a technical fix requiring the provision of a number other than that of the autodialer or message player was necessary. This requirement was adopted into the TCPA regulations in 1992 at 47 C.F.R. § 64.1200(d). Id. In addition, however, the FCC determined that all telemarketing calls must be accompanied by caller identification information. 47 C.F.R. § 64.1200(d)(4). This determination was not compelled by 47 U.S.C. § 227(d)(3) and is instead part of the agency's efforts to protect subscribers' privacy rights by mandating procedures for the creation and maintenance of company-specific do-not-call lists. Because the authority to adopt such a regulation is found in § 227(c) of the TCPA, the Court finds that the private right of action provided in § 227(c)(5) applies. Although the Ninth Circuit has not yet weighed in on this matter, the vast majority of circuit courts and district courts in this circuit that have considered the issue have reached the same conclusion. See Shelton v. Fast Advance Funding, LLC, 805 Fed.Appx. 156, 157 (3rd Cir. 2020); Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1265 (11th Cir. 2019); Charvat v. NMP, LLC, 656 F.3d 440, 449 (6th Cir. 2011); Walker-Schaut v. Lido Labs Holding Co., No. C23-5944 BHS, 2024 WL 2702007, at *5 (W.D. Wash. May 24, 2024); Hossfeld v. DIRECTV, LLC, No. 222CV05339JLSMAA, 2023 WL 3549742, at *4 (C.D. Cal. Mar. 31, 2023). The Court finds that there is a private right of action for violations of the seller identification regulation found in 47 C.F.R. § 64.1200(d)(4).
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.
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