In April, we wrote about the Facebook v. Duguid ruling issued by the Supreme Court was likely going to gut a great number of TCPA cases pending across the United States, some of which involve cannabis companies. As a quick recap, the Supreme Court had narrowed the definition of the “automatic telephone dialing system” (“ATDS”) to only those devices that generate random or sequential phone numbers (which are now largely obsolete). Since most TCPA cases have been filed against companies who use a database of phone numbers instead of phone numbers that are truly randomly generated, we’ve seen the lower courts follow suit and dismiss those cases that don’t plead the proper definition of an ATDS.
Well, we also wrote this was probably not the end of TCPA litigation as a whole, and a new lawsuit filed against a California dispensary proves it. In Pettibone v. City Compassionate Caregivers (“CCC”), a class action lawsuit filed in the Central District of California, Pettibone alleges that CCC sent multiple telemarketing messages to her cell phone that included opt-out instructions (“Text STOP to unsubscribe”). On November 14, 2020, Pettibone did reply with a STOP – but CCC continued to send her messages.
Instead of focusing on whether this was via an ATDS, Pettibone’s allegations pivot to whether CCC maintains an internal do not call list. As most of us know, the FTC allows for registration and enforcement of the National Do Not Call Registry, which now has more than 221 million telephone numbers on it. The TCPA’s implementing regulation provides:
“No person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.”
“(d) No person or entity shall initiate 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 telemarketing calls made by or on behalf of that person or entity.
(3) Recording, disclosure of do-not-call requests. If a person or entity making a call for telemarketing purposes (or on whose behalf such a call is made) receives a request from a residential telephone subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber’s name, if provided, and telephone number on the do-not call list at the time the request is made. Persons or entities making calls for telemarketing purposes (or on whose behalf such calls are made) must honor a residential subscriber’s do-not-call request within a reasonable time from the date such request is made. This period may not exceed thirty days from the date of such request …
(6) Maintenance of do-not-call lists. A person or entity making calls for telemarketing purposes must maintain a record of a consumer’s request not to receive further telemarketing calls. A do-not-call request must be honored for 5 years from the time the request is made.”
Pettibone alleges she has been registered with the Registry since January 13, 2009. She further alleges CCC does not have a written policy for maintaining an internal do not call list, and CCC fails to inform and train its personnel engaged in telemarketing on these requirements.
This case is akin to one we’ve already seen in Massachusetts, where the court awarded damages for violation the TCPA when the company failed to maintain a written do not call list policy and produce it to the requesting customer. Since it appears that this new type of claim will be trending and heading for the cannabis industry once again, we recommend you still keep these practices in mind and consult with us for any questions or concerns.