The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Washington State Judge Rules that Robocalls Are “Conversations”

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The Telephone Consumer Protection Act (TCPA) of 1991, 47 U.S.C. § 227, regulates these pesky “robocalls” that you may have deleted more than once in your voice mail, unconvinced by the suave prerecorded messages informing you about an upcoming sale or a new line of products.

Under the TCPA, it is unlawful for any person… to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Federal Communication Commission under paragraph (2)(B).

THE ESTABLISHED BUSINESS RELATIONSHIP EXEMPTION

One of these exemptions is the “established business relationship” exemption (EBR). An EBR is defined by the Code of Federal Regulations, 47 C.F.R. § 64.1200 as a ”voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the eighteen months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.” 

In April 2009, the retailer Talbots left a prerecorded message on the answering machine of one of its Washington State customers, informing her about some upcoming sales. Her husband, Mr. Cubbage, was annoyed by the message, and sued the retailer, asserting that Talbots had violated the TCPA and the Washington Automatic Dialing and Answering Devices Act, RCW 80. 36.400 (WADAD). Defendant moved for summary judgment, and the United States District Court of Washington granted it in July 2010. The case is Cubbage v. The Talbots, Inc., 2010 WL 2710628 (W.D. Wa. 2010).  

Talbots had argued that the call made to Mr.Cubbage’s wife was permissible because it had an established business relationship with her. Indeed, she had made a purchase at one of the Talbots stores eighteen months before the April 2009 call. Mr. Cubbage argued that since he is the one who listened to the message, the EBR exception did not apply. The Court however disagreed, holding that if a member of a household creates an EBR, that consent extends to calls made to that person’s telephone number.

Mr. Cubbage also argued that the FCC lacked the authority to enact the EBR exemption, but the Court considered that it lacked jurisdiction to consider the validity of the EBR as a rule.

THE WASHINGTON AUTOMATIC DIALING AND ANSWERING DEVICES ACT DOES NOT APPLY TO “CONVERSATIONS”

Mr. Cubbage also asserted a state claim pursuant to WADAD. The statute defines “commercial solicitation” as “the unsolicited initiation of a telephone conversation for the purpose of encouraging a person to purchase property, goods, or services.” Under the statute, “no person may use an automatic dialing and announcing device for purposes of commercial solicitation. This [statute] applies to all commercial solicitation intended to be received by telephone customers within the state.”

Talbots argued that it had not violated the WADAD as the call was not intended to be a “telephone conversation.” Therefore, a distinction may be made between prerecorded calls that initiate a conversation and calls that simply convey information without conversation. The Court agreed, after quoting several definitions of “conversations” as a spoken exchange between two or more people.

Plaintiff asserted that such an interpretation eviscerates the statute, in essence striping it from its power to protect Washington State residents from unwanted calls. He is not alone : Assistant Attorney General Shannon Smith is quoted in an article of The Seattle Times as saying that this “very narrow interpretation of the statute… eviscerates the whole intent of the Legislature.” Her office may file a brief as amicus curia in support to Mr. Cubbage’s appeal to the Ninth Circuit Court of Appeals. 

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Author: marieandreeweiss

Marie-Andrée was educated in France and in the United States, and holds law degrees from both countries. She is fully bilingual English-French, and writes articles regularly in these two languages on various privacy-related topics. Marie-Andrée is a member of the Bar of the State of New York. As an attorney in solo practice, she focuses on intellectual property, First Amendment, privacy, and Internet-related issues. Before becoming an attorney, she worked several years in the fashion retail industry, as a buyer then a director of marketing. She is a member of the New York State Bar Association (Intellectual Property Section and International Section), and of the American Bar Association (Business Law Section, Section of Antitrust Law, and Section of Intellectual Property Law)

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