FCC ‘Exceeded Its Authority’ in Promulgating TCPA Rules, Says Blue Nile
Jeweler Blue Nile is “shielded” from Telephone Consumer Protection Act liability “because it has established and implemented, with due care, reasonable practices and procedures to effectively prevent violations” of the statute, said its answer Thursday (docket 1:23-cv-15444) in U.S. District…
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Court for Northern Illinois in Chicago to George Moore’s Sept. 30 TCPA class action (see 2310310002). Moore’s cellphone number was listed on the national do not call registry for years before he began receiving Blue Nile’s text-message solicitations May 24, said his complaint. He alleges that the solicitations began after he visited a Blue Nile store and engaged with a salesperson. He denies ever giving the jeweler his consent to receive the texts. But Blue Nile asserts that “proper consent was obtained to place the alleged text messages” to Moore and his putative class members, said the jeweler’s answer. It also asserts that Blue Nile had an established business relationship with Moore and his putative class members “as that term is defined” under the TCPA, it said. Moore's conduct and that of his class members “puts them outside the zone of interest” for which the TCPA was enacted, “and they are therefore barred" from recovering any damages, it said. Blue Nile admits that Moore texted “stop” to try putting an ends to the text messages, but that doing so was “insufficient” to terminate his established business relationship Blue Nile, “given that the shared basket text messages were not sent on an automated system,” it said. Blue Nile has acted in “a good faith belief” that it is and was complying with all “applicable provisions” of the TCPA, said its answer. Blue Nile had no intention to violate any provision of the TCPA, and so it didn’t “willfully violate” the statute, it said. To the extent that Moore and any putative class members seek to hold Blue Nile liable for any violations of TCPA regulations promulgated by the FCC, Blue Nile asserts that the FCC “exceeded its authority in promulgating such regulations,” said its answer. Blue Nile further asserts that the FCC’s orders relating to the placement of calls or text messages to phone numbers listed on the DNC registry “are interpretive, rather than legislative, rules,” it said.