Federal Communications Commission
Numerous comments have been filed in support of Outcome Health’s request for a safe harbor with regard to Telephone Consumer Protection Act (“TCPA”) restrictions on calls and texts to cell phones. One counter-argument came from plaintiff’s attorney Jeremy Glapion, who argued callers should not be protected in the event of “technical errors”.
Comment: Glapion happens to represent Christie Griffith, who alleged she received faxes, a class action should be certified, and outcome should not be protected by “good faith” defense.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has filed suit against off-shore companies attempting to sell fraudulent computer technical support services. The FTC alleged that telemarketers claiming to be from well-known companies call and tell consumers that hackers have accessed their computers. FTC v. Genius Technologies, Inc.
Comment: The FTC’s ability enforce any judgment or ruling shutting down off-shore companies is limited.
The FTC participated in a panel discussion regarding unwanted robocalls in Washington, D.C. on February 18, 2018 entitled “Steps the FCC is Taking to Address Unwanted Robocalls”. The panel also discussed what to expect from Congress and regulators regarding the TCPA in 2018.
U.S. Supreme Court
The United States Supreme Court will consider arguments in South Dakota v. Wayfair, Inc. in April. This case is important to sellers calling into states as it could require sales tax to be withheld even if the seller has no employees or physical property in the state.
Comment: An earlier Supreme Court ruling held that a physical presence in the state was necessary for a state to collect sales tax. Quill Corp. v. N.D.
Fourth Circuit Court of Appeals
The Fourth Circuit Court of Appeals has ruled that a fax offering a free book was an advertisement under the TCPA. Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC. Although the district court had dismissed the claim, the appellate court ruled that the fax was advertising a “free 2014 Physician’s Desk Reference e-book” was governed by an FCC rule that “facsimile messages that promote goods or services even at no cost … are unsolicited advertisements ….”
Comment: The court also ruled that the Hobbs Act required that it accept the FCC’s interpretation of the TCPA on this issue.
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals heard oral argument in December in the matter of Marks v. Crunch San Diego, LLC. The court below had ruled that a text platform was not an automatic telephone dialing system (“ATDS”) as defined in the TCPA and that plaintiffs therefore had no TCPA claims under 47 U.S.C. § 227(b) for texts to their cell phones. In the earlier case, Judge Cynthia Bashant ruled that human intervention was required for numbers to enter the system and it lacked a random or sequential number generator. She also ruled the system did not have the capacity to become an ATDS because a third-party auditor would prevent any programming changes to it.
The Alabama House is considering a bill (HB 488) which would require charitable solicitors to promptly disclose their true name and the charitable organization on whose behalf the solicitation is being made. Before a donation or agreement is completed, the bill would also require the telephone solicitor disclose the percentage of the monetary contribution that would be used for a charitable purpose and how much of the contribution would be used for other purposes including administrative costs.
Comment: Disclosure percentages have been struck down as unconstitutional in many courts and I see no reason why this bill would impose a constitutional restriction on charitable solicitations which are fully protected by the First Amendment.
A California court has refused to dismiss a purported class action involving violation of the state’s call monitoring statute. Fishman v. Tiger Natural Gas, Inc. In considering the motion to dismiss, the court noted that Tiger recorded a call which included confirmation of home addresses, account numbers, and rate schedule. This information gave the consumers a reasonable expectation of privacy requiring notification of recording by Tiger. The court dismissed a TCPA claim because plaintiffs only received one call, and the “do-not-call” portion of the TCPA requires “more than one telephone call within a 12-month period” for there to be cause of action.
A California court has dismissed a TCPA claim by a realtor against a seller of security systems who called him to ask for contact information for purchasers of a home where he had recently been the broker for the purchase. Knutson v. Blue Light Security, Inc. The judge ruled that the offer of a gift card for the contact information was not advertising as that term is defined in the TCPA, but gave the plaintiff leave to amend.
Comment: A lesser standard of “prior express consent” is required for calls to cell phones if the calls are not advertising or telemarketing.
A California TCPA text class action case has settled for $3.5 million. Gergetz v. TeleNav, Inc. Plaintiff alleged TeleNav continued to text persons after they unsubscribed from text messages. Individuals will have to make a claim and can receive up to $1,500 for each claim or text. The plaintiff’s attorneys are authorized to receive up to 33 percent of the settlement fund as a reasonable attorney’s fee. Any remainder would be donated to the Privacy Rights Clearinghouse.
A Florida court has ruled that a debt collector’s dialing system was not an ATDS as the term is defined in the TCPA. Ferrer v. Bayview Loan Servicing, Inc. (S.D. Fla.).
Comment: The system involved was an Avaya X1 platform which the court ruled could not dial predictively or store produced telephone numbers.
Indiana has enacted an amendment to the exemption from telemarketing registration for certain sales of stocks (HB 1135). If you are a seller of securities using that exemption, you should review it as part of your compliance program.
Comment: Indiana’s registration statute is unique because it applies only if certain false representations are made in the calls. If false representations are made, however, the caller is likely breaking other laws, so registration almost admits to other illegality. I would carefully review a calling campaign prior to registering in the state of Indiana.
A bill has been proposed in the Kentucky House (HB 475) which would revise Kentucky’s Telemarketing Act to specifically include VoIP calls.
A Louisiana federal court has ruled that a prior class action settlement barred subsequent claims by an individual that she was called on her cell phone using an automatic telephone dialing system (“ATDS”). Lester v. Wells Fargo Bank NA. Although plaintiff claimed she sent back the opt-out notice, her name did not appear on the list of opt-out consumers accepted by the court and this judge therefore ruled her subsequent TCPA claim was barred. The judge also noted that because the plaintiff provided Wells Fargo with her cell phone number, she gave her consent to be called at that number regarding her loans.
A bill has been proposed in the New Jersey Senate (SB 1942) which would require energy businesses maintain recordings of telemarketing sales calls for three years.
A Texas court has refused to dismiss two individual defendants from a TCPA class action complaint. The court noted that individual persons could be held liable if they had some “direct, personal participation” in the wrongdoing. Schopp v. Right Choice Heating & Air, Inc. Reviewing the complaint, only, the court noted that it alleged these individuals “personally approved” the illegal calls and, therefore, did not dismiss them from the suit.