Federal Communications Commission (FCC)
On November 18, the FCC issued an advisory opinion stating that autodialed text messages are subject to the Telephone Consumer Protection Act (TCPA). See https://www.fcc.gov/document/enforcement-bureau-issues-robotext-advisory. The advisory states that messages including texts delivered through an automatic telephone dialing systems (ATDS) are subject to the TCPA. The FCC reaffirmed its ruling that a sender of a text to a number that has been reassigned is protected only for the first text, and subsequent texts to the new subscriber (who presumably did not provide consent) are illegal “regardless of whether or when they learn of the reassignment.”
Comment: As we have stated before, the “safe harbor” for reassigned numbers is illusory as it only applies to the first communication to the reassigned number and knowledge of reassignment is thereafter imputed to the sender regardless of actual knowledge.
The FCC has denied a request by the Mortgage Bankers’ Association (MBA) to exempt mortgage servicing calls from the prior express consent restrictions in the TCPA. See http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db1115/DA-16-1277A1.pdf. It claimed that the MBA could not demonstrate the calls would be free to the end user and that the benefits to consumers outlined by the MBA did not outweigh the impact on residential privacy an exemption would cause.
Comment: The FCC has issued numerous other exemptions to this ban, and I am surprised it did not grant this request.
Federal Trade Commission (FTC)
A Florida company and its individual owners agreed to a ban from telemarketing and selling debt release services in a settlement with the FTC and the state of Florida. FTC v. E.M. Systems & Services, LLC., No. 15-CV-01417 (M.D. Fla. Sept. 14, 2016). The FTC also obtained forfeited assets of more than $1.8 million.
The FTC has reached a settlement in a claim against a lead generator alleging violation of the Telemarketing Sales Rule (TSR). USA v. Consumer Education Info, Inc., et al., No. 16-CV-02692 (D. Co. Dec. 2, 2016). The complaint alleges Consumer Education called consumers whose names were on the federal “do-not-call” list and that the “opt-in” forms used to create leads did not identify the names of entities which would be calling those consumers. Thus, these opt-ins were not effective “prior express consent” as that term is defined in the TSR.
An Arizona auto glass company has been banned from making telemarketing calls for six years to persons in Arizona on the federal “do-not-call” list. The company also agreed to pay $50,000 in civil penalties to the attorney general.
Comment: The attorney general of Arizona has not been particularly active with regard to enforcement of the federal “do-not-call” list although all states’ attorneys general can enforce the federal list.
A California court has enforced an arbitration clause in a DirecTV contract as part of a TCPA case brought by a California consumer. Tuck v. DirecTV, No. 16-CV-00160, 2016 U.S. Dist. LEXIS 158034 (S.D. Cal. Nov. 15, 2016).
A California court stayed a TCPA case brought against a bank based on similar lawsuits against the FCC regarding its definition of an ATDS. Clayton v. Synchrony Bank, No. 16-CV-01241, 2016 U.S. Dist. LEXIS 154420 (E.D. Cal. Nov. 7, 2016).
A Florida court has refused to dismiss a purported class action against a debt collector attempting to reach a debtor who instead called the plaintiff. Tillman v. Ally Fin. Inc., No. 16-CV-00313, 2016 U.S. Dist. LEXIS 164997 (M.D. Fla. Nov. 30, 2016). Plaintiff alleged he made a “do-not-call” request on at least one occasion but received more than 22 calls after the request for a period of three months. The defendant argued that he was not injured “in fact” but the court disagreed ruling these calls were “precisely the kinds upon the TCPA aims to prevent.”
Comment: The company specific “do-not-call” request is very relevant here, and this case does not detract from other cases making the argument that there is no injury “in fact” when plaintiffs “set up” calls by opting-in or otherwise taking action to generate “illegal” calls. This plaintiff did not do that, and the court therefore ruled he did suffer “injury in fact.”
A bill has been introduced in the Kentucky legislature (Bill of Requests 256) which would prohibit the sale of consumers’ wireless phone numbers (in directories or as leads) without prior express written consent from the subscriber.
A bill has been introduced in the Montana legislature (LC 334) which would exempt calls related to a political campaign from the state’s prerecorded call restrictions.
A New Jersey federal court has dismissed a case brought by an individual against a debt collector who made 18 attempts to contact the plaintiff, 17 of which were unanswered. Plaintiff claimed to have received many more calls but had no records to prove this. Chisholm v. AFNI, Inc., Civil Action No. 15-3625(JBS/JS), 2016 U.S. Dist. LEXIS 162303 (D.N.J. Nov. 22, 2016). The Court ruled that the plaintiff had knowingly provided his telephone number to DirecTV and therefor expressly consented to the debt collection calls based on that account.
New York has passed a law which requires telemarketers to transmit caller identification information. The law goes into effect immediately.
Comment: This law duplicates federal caller ID transmission rules.
A bill has been introduced in the Pennsylvania House (HB 2434) which would create a “do-not-call list” for persons who do not wish to receive prerecorded political calls. The law would not apply to live voice calls or to prerecorded calls during the five calendar days preceding an election.
A bill has been introduced in the Pennsylvania Senate (SB 1406) which would allow businesses to add their telephone numbers to the state no-call list.
Comment: The federal “do-not-call” list was ruled to be constitutional by an appellate court because it was designed to protect the privacy of individuals. Many courts have found that businesses do not have those same privacy interests, and this bill would likely be found unconstitutional if passed.