Set the hook on 47 CFR § 64.1200(d) TCPA violations
- Peter Schneider
- Feb 5
- 5 min read
Updated: Jul 3
One of the regulations implementing the Telephone Consumer Protection Act is 47 CFR § 64.1200(d): No person or entity shall initiate any 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 to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive such calls made by or on behalf of that person or entity.
However, as Thompson v. Genesco, Inc., 4:23-cv-00292-SRC, (E.D. Mo. Jan. 8, 2024) shows, you probably can't take advantage of this provision in a TCPA lawsuit unless you first made a do-not-call request to the Telemarketer/Seller.
In Thompson, Dennis Thompson sued Genesco, Inc. in Missouri state court, alleging that over a period of four years, Genesco unlawfully and repeatedly sent him unwanted marketing text messages in violation of the Federal Telephone Consumer Protection Act (TCPA) and its accompanying regulations. Thompson sued Genesco and apparently his sole claim was under 64.1200(d) - failure to instituted procedures for maintaining a list of persons who request not to receive such calls made by or on behalf of that person or entity. You would have to believe it was because he never got over to donotcall.gov and registered his phone number, so if you didn't either, get off your duff and go do it now.
Thompson alleges no more than one count of Genesco's wrongdoing: that it failed to meet those “minimum standards” required by § 64.1200(d), and that it was therefore barred from sending telemarketing messages of any kind.
Ultimately Thompson lost under Article III standing which is a common way federal judges dispose of cases. Genesco's argument boiled down to "even if we broke the law you weren't injured by it".
“To establish an injury in fact, a plaintiff must show an injury that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Auer v. Trans Union, LLC, 902 F.3d 873, 877 (8th Cir. 2018) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)) (internal quotation marks omitted). “‘Article III standing requires a concrete injury even in the context of a statutory violation,' and a plaintiff cannot ‘allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.'”
This was Thompson's Achilles heel. Even if Genesco wasn't maintaining an internal do-not-call list in violation of 64.1200(d), was Thompson harmed by it if he never asked to be placed on Genesco's internal do-not-call list? Courts often look at causal connections between the injury and the conduct complaint of.
To satisfy the traceability prong of Article III standing, a plaintiff must show that there is a “causal connection between the injury and the conduct complained of.” Lujan, 504 U.S. at 560. The alleged injury must, in other words, “result[] from the putatively illegal action” or the “challenged action” of the defendant. Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41 (1976); see also Crain v. Crain, 72 F.4th 269, 278 (8th Cir. 2023) (“[T]raceability . . . requires the plaintiff to show a sufficiently direct causal connection between the challenged action and the identified harm” (citation and internal quotation marks omitted)). The question in a traceability analysis is simple: whether there is a “causal connection” between the challenged, unlawful conduct and the injury suffered. Crain, 72 F.4th at 278.
The district court hammered Thompson over the obvious. But an obvious, critical link between his injury and those violations is glaringly absent: the factual allegation that Thompson actually asked to be put on that internal do-not-call list in the first place. That internal list, whether extant or not, is useless to Thompson if it never would have featured his name or phone number. Therein lies the traceability problem: if Thompson cannot allege a way-any way-in which he would appear on a Genesco internal do-not-call list, then his injury cannot be traced to Genesco's failure to maintain one.
Article III standing in federal courts is very important. You'll get kicked out of federal court if all you have is a law violation but you can't show how you were harmed by it, but state courts don't have Article III so one trick in cases where you just don't have Article III standing is starting in state court and figuring out how to stay there (like getting just the 47 CFR § 64.1200(d) claim remanded ), but that is for another blog post.
The Thompson case was not an isolated incident. Also see Thompson v. Vintage Stock, Inc., 4:23-cv-00042-SRC, 5 (E.D. Mo. Feb. 8, 2024) where their 47 CFR § 64.1200(d) claim met the same fate for the same reason.
The Thompsons' complaint, however, contains no facts connecting Vintage Stock's alleged failures with their receiving of text messages. Most notably, the Thompsons do not allege in their complaint that they asked Vintage Stock to place them on its internal do-not-call list, or even that they asked Vintage Stock not to contact them. This means that even if Vintage Stock had done everything the Thompsons complain it failed to do-instituted procedures for maintaining the list, had a written policy for maintaining it, and properly trained its employees-the Thompsons would be in the exact same position: they would have received the unwanted text messages from Vintage Stock because they would not have been on Vintage Stock's internal do-not-call list.
Making a do-not-call request at some point is good practice in playing defensive ball, and it also has side effects on telemarketing claims like 47 CFR § 64.1200(d). If you live in Washington State, there is another reason to make a do-not-call request - RCW 80.36.390(7): If, at any time during the telephone contact, the called party states or indicates that he or she does not want to be called again by the telephone solicitor or wants to have his or her name, individual telephone number, or other contact information removed from the telephone lists used by the telephone solicitor:
(a) The telephone solicitor shall inform the called party that his or her contact information will be removed from the telephone solicitor's telephone lists for at least one year;
(b) The telephone solicitor shall end the call within 10 seconds;
(c) The telephone solicitor shall not make any additional telephone solicitation of the called party at any telephone number that the called party has requested be removed from the solicitor's telephone lists for a period of at least one year;
That is a very specific sequence of events for a telemarketer to screw up, and the penalty per violation is $1,000.
A textbook case of making repeated do-not-call requests and the defendant (allegedly) blowing them off is recent case Schofield v Albertsons Safeway LLC. That TCPA plaintiff says she was receiving solicitation text messages from Albertsons that instructed Txt STOP to end", and she replied STOP at least 8 times yet Albertsons continued texting. See her complaint for an example of a well written 47 CFR § 64.1200(d) claim.
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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