Get your 47 CFR § 64.1200(d)(4) on - did your unwanted texts identify the sender?

47 CFR § 64.1200(d)(4) says: "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."

How many text message solicitations have you ever received that complied with the law? Never? A recent ruling in Dawson v. Porch, 2024 WL 4765159 (W.D. Wash. Nov. 13, 2024). illustrates using 47 CFR § 64.1200(d)(4) on text messages. In this lawsuit:

The vast majority of the named plaintiffs (947 out of 993) assert a claim under 47 C.F.R. § 64.1200(d), which prohibits “any call for telemarketing purposes to a residential telephone subscriber unless” the caller has instituted a list of minimum procedures designed to ensure that consumers can opt out of receiving such calls.

The Dawson defendants tried to dismiss the § 64.1200(d)/(d)(4) claim with the argument "Defendants argue that the company-specific do-not-call requirements apply only to telephone calls, not to text messages". It didn't work:

As early as 2003, the FCC “allow[ed] wireless subscribers to benefit from the full range of TCPA protections,” In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14039 at ¶ 36 (2003) (hereinafter, “2003 TCPA Order”), and the agency interpreted “call . . . to include both voice calls and text messages” for purposes of 47 U.S.C. § 227(b)(1)(A) . . . The Ninth Circuit has found that the FCC’s interpretation is reasonable and consistent with the dictionary’s definition of “call,” how text messages are sent and used, and the purposes of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

In addition, courts around the country have long allowed claims under 47 C.F.R. § 64.1200(d) to proceed where text messages, rather than calls, were at issue. Defendants have not identified any case in which a claim under 47 C.F.R. § 64.1200(d) was dismissed because the telemarketing communication involved a text message rather than a phone call.

DAWSON v Portch Dkt 147.pdf

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The Dawson defendants weren't done. They claimed they couldn't identify themselves due to limited characters in a text message, the regulation only applied to artificial or prerecorded speech calls, and consumers had to reply 'stop' before the protections kicked in. The Dawson wasn't having it.

The Court rejects these arguments. There is no evidence that text messages are limited in a way that would prevent the seller from meeting the identification requirements. The requirements of § 64.1200(d) apply by their own terms to both “artificial or prerecorded-voice telephone call[s]” and “any call for telemarketing purposes,” the latter of which encompasses text messages. Defendants cite no authority for the proposition that a stop request must be made before a violation of subsection (d) can be found. Nor would such a requirement make sense: forcing sellers to identify themselves ensures that a subscriber has the information needed to make a stop request. Defendants’ proposed interpretation of the regulations would allow a seller to insulate itself from receiving stop requests by violating subsection (d)(4) and then argue that every claim under § 64.1200(d) is precluded because there was no stop request. The Court declines to adopt such an unreasonable and counterproductive interpretation of the regulations.

A recent Western District of Washington federal court case touched on the topic. Walker-Schaut v. Lido Labs Holding Co., C23-5944 BHS, 9 (W.D. Wash. May. 24, 2024). That defendant made the usual 47 C.F.R. § 64.1200(d)(4) was promulgated under 47 U.S.C. § 227(d)'s “technical and procedural” standards without a private right of action, and a second claim that the identification requirements of § 64.1200(d)(4) apply only to artificial or prerecorded-voice telephone calls. Wrong said the court.

as Walker-Schaut argues, the regulation continued to prohibit “any call for telemarketing purposes to a residential telephone subscriber[.]” Id. at 11 (citing the prior and current versions of 47 C.F.R. § 64.1200(d)). She thus demonstrates that § 64.1200(d)'s prohibitions are not limited to artificial or pre-recorded voice calls.

Addressed in another blog article the 47 C.F.R. § 64.1200(d)(4) was promulgated under 47 U.S.C. § 227(d)'s “technical and procedural” standards argument is pretty much dead at this point. If you are pursuing telemarketers in court for unwanted text messages a claim under § 64.1200(d)/(d)(4) is low hanging fruit if they violated this provision.

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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