Mark Leyse takes prerecorded phone calls seriously.
In 2005, Leyse filed a class-action lawsuit against Clear Channel after a Clear Channel radio station called Leyse's home phone number and delivered a prerecorded message: Hi, this is Al "Bernie" Bernstein from 106.7 Lite FM. In case your favorite station went away, I want to take just a minute to remind you about the best variety of yesterday and today at 106.7. Motown, classic 70s from James Taylor, Elton, and Carole King; it's all here...
(The message goes on to announce a contest, but we lost interest. Frankly, we would have hung up after the pre-recorded "Hi.")
Leyse's lawsuit claimed that the prerecorded telephone call violated the Telephone Consumer Protection Act (TCPA), and corresponding regulations. The district court dismissed the case for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure because the court concluded that the FCC had exempted the type of call at issue from the TCPA's prohibitions against prerecorded calls.
The district court noted that the FCC's exemption determination was entitled to deference under Chevron because Congress expressly authorized the FCC to "implement and create exemptions" to the TCPA, and because the exemptions created under this authority were promulgated after notice-and-comment rulemaking.
This week, the Sixth Circuit Court of Appeals affirmed that decision.
The TCPA prohibits prerecorded calls, but exempts certain calls from that prohibition. Specifically, the FCC exempted prerecorded calls that are made for a commercial purpose, but that doesn't include the transmission of any unsolicited advertisement.
According to the FCC, prerecorded messages that invite a consumer to listen to or view a free broadcast are exempt from the TCPA, while "messages that encourage consumers to listen to or watch programming ... for which the consumer must pay (e.g. cable, digital satellite, etc.)," are advertisements under the TCPA.
Leyse argued that the prerecorded call he received lies outside the category of calls the FCC exempted from the TCPA's prohibitions. The appellate court disagreed.
The FCC has determined "hybrid calls" that both announces a contest and contains a general promotion for the station are exempt and permissible under the TCPA. That hurt Leyse's case. But it was Chevron deference that killed the case.
Administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.
Here, the Sixth Circuit Court of Appeals found that the TCPA was replete with evidence that Congress intended the FCC to promulgate rules carrying the force of law that determine what kinds of prerecorded calls are permissible and what kinds are not.
Are you considering a TCPA challenge to prerecorded calls? Double check the FCC rulings. There's no contingency fee in a failed class action lawsuit, so be sure that the case is worth your time before filing.
- Mark Leyse v. Clear Channel Broadcasting Inc (Sixth Circuit Court of Appeals)
- Company Can Sue for Fax, Just the (Unsolicited Advertising) Fax (FindLaw's Sixth Circuit Blog)
- Law Crushes and Phone Numbers Change, Robo-Dialing Fines Remain (FindLaw's Seventh Circuit Blog)