January 28, 2022

Western District of Washington Ruling Breathes Life into TCPA Safe Harbor Provision

Holland & Knight Alert
Justin Michael Sizemore | Travis A. Sabalewski

In a decision highlighting the importance of maintaining procedures for complying with the do-not-call (DNC) provisions of the Telephone Consumer Protection Act (TCPA), the U.S. District Court for the Western District of Washington granted summary judgment in a putative class-action lawsuit.

Background and Court Decision

The plaintiff in Johansen v. Efinancial LLC alleged that the defendant contacted him without his express consent at a number that the plaintiff had registered on the DNC list. The defendant argued that the plaintiff had consented to being contacted and that even if he had not consented, the defendant's TCPA compliance procedures were sufficient to provide the defendant a complete defense pursuant to the so-called "safe harbor" provision of the TCPA. The district court agreed, granting summary judgment on both bases. The court concluded that the plaintiff had consented to being called and that the defendant's procedures shielded it from liability.

The safe harbor provision – which applies only to claims brought under the TCPA's prohibition on contacting numbers registered on the DNC list – states that if an entity has violated that provision, it can avoid liability if the call was placed in error and that "as part of its routine business practice," the entity meets various standards, specifically: 1) "written procedures to comply with the national do-not-call rules"; 2) training of personnel on those procedures; 3) maintenance of a list of phone numbers that the entity cannot contact; 4) the use of "a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules"; and 5) the use of "a process to ensure that it does not sell, rent, lease, purchase or use the national do-not-call database, or any part thereof, for any purpose except compliance with this section and any such state or federal law to prevent telephone solicitations to telephone numbers registered on the national database." 47 C.F.R. § 64.1200(c)(2)(i)(A)-(E).

In Johansen, the defendant "produced significant evidence that as part of its routine business practice, it complies with the standards required by the safe harbor provision and had substantially complied with the purpose of the TCPA … "Because of those procedures, the district court held, the defendant would be shielded from liability even if it had made an error in contacting the plaintiff at a number registered on the DNC."

Takeaways and Considerations

The Johansen case highlights the importance of having robust DNC compliance procedures and provides a roadmap for using those procedures to defeat TCPA claims based on alleged DNC violations. These procedures take on greater importance as the TCPA plaintiffs' bar focuses more of its attention on DNC claims following the U.S. Supreme Court's decision in Facebook v. Duguid, which adopted a narrow definition of automatic telephone dialing systems (ATDS) and, thereby, made it exceedingly difficult for plaintiffs to prove violation of the TCPA's prohibition on calls placed with an ATDS.

Holland & Knight advises clients both on the practices and procedures needed to have the protections of the safe harbor provision and also in litigation matters under the TCPA. For questions specific to your organization, contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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