MAY 2019

Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau (“CFPB”) issued a notice of proposed rule-making with regard to the Fair Debt Collection Practices Act which would limit debt collectors to no more than seven attempts by telephone per week to reach a consumer about a specific debt and require debt collectors to send consumers certain information about the debt including itemization and how to dispute the debt.  Comments are due 90 days after publication in the Federal Register which will happen in the coming weeks and can be submitted using Docket No. CFPB-2019-0022 at www.regulations.gov.

Comment: Please contact me if you would like assistance with filing comments. Frequency restrictions regarding how often a telemarketer or debt collector can contact a consumer are rare, but states and federal agencies are increasingly proposing them.

Federal Communications Commission

The Federal Communications Commission (“FCC”) has proposed a declaratory ruling which would allow phone companies to block “robocalls” to their customers without affirmative action on behalf of the customer. The agency calls this “blocking by default”. 

The declaratory ruling would be considered at the FCC’s meeting on June 6, 2019 and will allow telecom providers to offer call-blocking programs based on “reasonable analytics” designed to identify unwanted calls.

Comment: It will be difficult for the FCC to craft a rule that is not a violation of free speech rights, but the text of the declaratory ruling has not yet been released.

California

A California judge has stayed a “wrong number” Telephone Consumer Protection Act (“TCPA”) case brought against a health insurance company pending FCC rulings on the definition of “called party” and the safe harbor for reassigned numbers. Matlock v. United Healthcare Services.

A California court has ruled that a TCPA claim survives death of the plaintiff, i.e. even if a plaintiff dies, her lawsuit can continue (substituting an heir as the plaintiff). Eaton v. Midland Credit Management. Plaintiff’s attorney still has a duty to promptly notify the court and the other side of the death. 

Mississippi

Mississippi has enacted a bill (SB 2821), effective April 16, 2019, which adds text messages to the scope of communications regulated by the Mississippi Telephone Solicitation Act. It also adds solicitation of charitable donations to the definition of “telephone solicitation”. 

Comment: Calls by professional fundraisers soliciting donations to charities are now banned to numbers on the Mississippi no call list unless there is an exemption (like a past donation).

Illinois

An Illinois court has ruled that a TCPA plaintiff has a valid claim when a company sent more than six text messages per month to him when his consent form specifically limited the number of texts to six per month.  Hudson v. Ralph Lauren Corp. The court ruled, however, that the sender did not have to include opt-out instructions in each text as the plaintiff had claimed.

Comment: Consent is not “all or nothing”, and limitations imposed on that consent are valid. Courts have considered this question before when a cell phone number was obtained “for security purposes only”, then used for marketing purposes. Here, defendant’s own form limited texts to six per month and the court found it liable when it exceeded that number. It is very important to examine the circumstances under which express consent is obtained especially if those limitations are imposed by the person obtaining the consent. That entity has no excuse not to honor those conditions.

New Jersey

A judge has dismissed a case brought against a texting company but refused to allow plaintiff’s counsel to withdraw or dismiss defendant’s claim for sanctions against plaintiff who allegedly used Slack to generate texts to himself.  Gino D’Ottavio v. Slack Technologies.  Slack argued there was unrebutted evidence that plaintiff sent text messages to himself in order to fabricate TCPA claims. The judge allowed Slack’s counterclaims to proceed against the plaintiff and said he would consider sanctions after discovery was completed.

Ohio

An Ohio appellate court has affirmed an order disqualifying Bryan Anthony Reo from representing his father and spouse in a case alleging violations of the TCPA during a debt collection call. Reo v. University Hospitals Health Systems. The trial court ruled and the appellate court affirmed that attorney Bryan Reo was a witness in the matter and, therefore, could not act as counsel.