Federal Communications Commission
The Federal Communications Commission (“FCC”) has issued another notice of apparent liability for alleged illegal caller ID “spoofing”, fining an insurance seller more than $80 million with no prior citation.
Comment: Under the Telephone Consumer Protection Act (“TCPA”) generally the FCC must issue a citation before it can fine any non-regulated (e.g. non-telecommunications) company. This is the second time the FCC has avoided the requirement to first cite a company, by fining the company not for the calls but for illegal caller ID. It remains to be seen whether the fined companies will challenge this “end run” around the citation requirement.
Telephone companies have begun offering call blocking services to subscribers pursuant to the FCC’s March 23, 2017 order. See https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-24A1.pdf.
Comment: Unfortunately, these blocking services have also affected legitimate businesses which have struggled to communicate with the cellular providers to have their calls unblocked.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has announced that it will share telephone numbers received from consumers in “do-not-call” or robocall complaints with telecommunications carriers. The data will include the date and time of the call and the general subject matter of the call as reported by the consumer. This seems to apply a presumption of guilt to the caller, as well as a means by which competitors could cause other businesses’ numbers to be blacklisted through the FTC with strategic complaints.
U.S. House of Representatives
The U.S. House subcommittee held a hearing entitled “Lawsuit Abuse and the Telephone Consumer Protection Act” where a witness testified to “set-up” lawsuits brought by persons who opted-in for texts, immediately dropped out of the program, and then filed complaints when they received another text. The U.S. Chamber Institute for Illegal Reform proposed changes in the TCPA including a new statute of limitations, a good faith defense, and a better definition of “capacity” with regard to calls to cell phones.
An appeals court has ruled that a consumer can “partially” revoke express consent after a debt collector called the plaintiff and she said “I can’t really be talking about these things while I’m at work.” Schweitzer v. Comenity Bank (11th Cir. Aug. 10, 2017). In a later phone call, the plaintiff asked the bank “can you please just stop calling” and this request was honored. The court ruled that whether the first conversation revoked consent to be called at certain times was a question of fact for the jury and sent the case back to the trial court.
Comment: This is a victory for plaintiffs who now can claim equivocal “do-not-call” requests are “partial” revocations of express consent. Our recommendation is that you train your personnel to honor any form of request, as required by law, and to err on the side of removing persons in the face of equivocal responses, or asking for clarification.
A judge has denied class certification in a case involving survey calls placed by an automobile manufacturer to purchasers of its cars. Katz v. Am. Honda Motor Co. (C.D. Cal. June 29, 2017). The plaintiff received a call in error, and the judge ruled that his interests were not the same as the rest of the class—many of whom had leased cars and provided prior express consent to be called.
Comment: This is a very good case for defendants in “wrong number” TCPA class actions, which are becoming common.
A Florida court has dismissed a TCPA junk fax class action finding that the complaint did not contain adequate facts, and therefore did not give the defendants fair notice of what the plaintiff was alleging. Scoma Chiropractic, P.A. v. Jackson Hewitt Inc. (M.D. Fla. July 24, 2017).
Comment: Many times TCPA complaints are fill in the blank forms, merely changing the name of the defendant and the date of the calls or faxes. This judge rejected this tactic, but did give the plaintiffs the chance to amend the complaint and refile.
A United States judge has partially granted Dish Network’s motion to modify her previous injunction which found Dish Network responsible for the telemarketing violations of its vendors. United States v. Dish Network LLC (C.D. Ill. Aug. 10, 2017).
Comment: Although the judge made two typographical corrections, she did not change the harsh terms of the previous order from June 2017 which found Dish Network liable for $84 million in statutory damages.
A court has ruled unequivocally that plaintiffs are not entitled to attorneys’ fees for successful TCPA claims. Currier v. PDL Recovery Grp., LLC (E.D. Mich. Aug. 18, 2017). The case involved state and federal debt collection law and the TCPA. The plaintiff “won” his case and was awarded $6,000 in statutory damages while his attorneys claimed more than $212,000 in attorneys’ fees. The court found this claim unreasonable. It ruled that “tasks were over-billed” and found one attorney billed 15 hours in one day to “edit and trim billing entries.” The court ruled plaintiffs’ attorneys were entitled to attorneys’ fees of just more than $150,000.
Comment: This fee still seems unreasonable given the amount of damages involved.
On August 22, Judge Brian Martinotti of the U.S. District Court of New Jersey dismissed a TCPA case brought against a car dealer which called the plaintiff with a customer satisfaction survey after he had serviced his vehicle at the dealer. Broking v. Green Brook Buick GMC Suzuki (D.N.J. Aug. 22, 2017). The court ruled that the call was not a sales call despite plaintiff’s argument that it was intended to generate “good will” and future sales. The plaintiff had sought damages of $6.6 million based on 4,457 calls and treble damages for a “willful violation.”
Comment: In a clear situation of overreaching, the plaintiff had alleged he had no prior dealings with the dealer before he admitted his car was serviced there, alleged the call encouraged him to buy a car, but later testified he could not remember what the call said. “The court cannot fathom Congress intended, in enacting the TCPA, to create a cause of action in a case such as this, where a plaintiff’s account of an alleged violation was shown to be inaccurate in many respects.”
On August 21, the New York Senate signed (SB 4361) into law in the state of New York which requires prompt disclosure at the beginning of the call whether the call is being recorded, effective immediately.
Comment: Based on state permission to record laws and the fact that it is impossible to determine where a consumer is at a given moment with the prevalence of mobile phones, it has already been our recommendation that recording be disclosed at the beginning of each call.
A Washington court has dismissed a case brought against the NRA because the plaintiff did not allege that the prerecorded calls she mistakenly received were a “conversation.” Kalmbach v. NRA of Am. (W.D. Wash. July 26, 2017).
Comment: She likely will amend her complaint and refile, but there is good case law for the defendant supporting its position that there can be no cause of action under Washington state prerecorded law for a one-way prerecorded call.
A federal court has dismissed a case brought by two consumers who opted in to receive texts from a department store, then sued claiming they did not provide prior express written consent to receive those texts. Winner v. Kohl's Dep't Stores, Inc. (E.D. Pa. Aug. 17, 2017). The court ruled the plaintiffs texting “SAVE30” “constituted her electronic signature” under E-SIGN.
Comment: This is a somewhat surprising ruling as E-SIGN requires that the code be given or received with intent to sign the document. Although the plaintiffs are making a “technical” argument here, it doesn’t seem that the words “SAVE30” show intention to sign as required by law. I would recommend that a disclosure specify that the opt-in text constitutes the consumer’s signature.
A bill has been forwarded from the Pennsylvania House to the Senate for review (HB 105). The bill would specifically include prerecorded calls to those regulated by the state “do-not-call” list law. It would also require a prompt opt-out notice for prerecorded calls.