SEPTEMBER 2019

Federal Communications Commission

The Federal Communications Commission (“FCC”) has announced a delay in implementation of the reassigned number database which would track when a number has been disconnected and reassigned. Use of that information would allow businesses to “clean” their internal “do-not-call” file as a “do-not-call” request would no longer be effective if the number has been disconnected and reassigned. The FCC ordered pricing to be published in February 2020 with potential activation of the list in December 2020.

Federal Trade Commission

The Federal Trade Commission (“FTC”) has filed comments with the Consumer Financial Protection Board related to amendments to the Fair Debt Collection Practices Act. The comments, available for review here: https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-federal-trade-commissions-bureau-consumer-protection-matter-proposed-rule-request/final_-_cfpb_debt_coll_draft_comment_9-13_v2_1pm_ver_to_comm.pdf, involve some additional rules on how debt collectors contact debtors via telephone, including prohibiting repeated unanswered calls to consumers late at night. The FTC also endorses an opt-out notice and requirement for any electronic communication.

The FTC has approved a settlement with a company that offers car dealer management services. Following a breach of its data in 2016, where a hacker accessed information of more than 65,000 consumers and the company only noticed the breach weeks later. In re: LightYear Dealer Technologies, LLC. The settlement requires implementation of security procedures but no fine or penalty.

Sixth Circuit Court of Appeals

The Sixth Circuit Court of Appeals has affirmed a district court ruling that the definition of automatic telephone dialing system (“ATDS”) requires the system to have the capacity to dial randomly or sequentially. Gary v. Trueblue, Inc. The Sixth Circuit did not affirmatively rule that an ATDS requires the number generation capacity, but simply affirmed the lower court.

Comment: The plaintiff here was pro se and likely did not argue his case effectively.

United States Congress

The U.S. House of Representatives is considering a bill (HR 1423) which would bar arbitration agreements in consumer disputes. 

Comment: We recommend including an arbitration agreement in all your consumer agreements to prevent Telephone Consumer Protection Act (“TCPA”) class actions. This bill would prohibit such protections and you should urge your representative to oppose the law if you include such protections in your consumer agreements.

California

California’s data broker registration law (AB 1202) has been passed by the General Assembly and sent to the governor for signature. The bill would require data brokers to register with the attorney general and defines the term as “an entity which knowingly collects and sells personal information of a consumer with whom the business does not have a direct relationship.”

Comment: Companies which collect personal information about consumers with whom they do not have a direct relationship will be required to register with the attorney general.

Both the Senate and General Assembly have passed (AB 1130) which modifies existing law regarding data breach notification. The bill will now go to the governor for signature. Businesses now would be required to disclose breach of information such as unique biometric data, tax identification number, passport numbers, and other unique government document numbers.

A bill has passed both the General Assembly and Senate (SB 208) in different forms and now is being edited for concurrence concerning the state’s caller ID law. The bill, known as the Consumer Call Protection Act of 2019, will require telecommunication service providers to implement technology to verify and authenticate caller ID information, known as “STIR/SHAKEN”.

A court has denied class certification in a case against Coldwell Banker Residential Brokerage Company. Chinitz v. NRT West, Inc. Plaintiff alleged he received calls after making a “do-not-call” request. The court ruled that the plaintiff would have to show Coldwell Banker was responsible for the actions of every one of its independent sales associates, an “individualized inquiry”, precluding class certification.

Connecticut

A Connecticut judge has upheld (at least initially) a counter-claim against a common fax TCPA plaintiff.  The counter-claim alleges the plaintiff Gorss Motels engaged in fraud by signing up for faxes, then suing alleging errors in disclosures in those faxes. Gorss Motels, Inc. v. Illen Products, Ltd.

Comment: The plaintiff is common as is plaintiff’s counsel Anderson + Wanca. Illen likely will investigate the relationship between the two.

Illinois

Another court has ruled that a system must have the capacity to dial sequentially or randomly for it to be an ATDS. Smith v. Premier Dermatology.

Comment: Most courts, other than the Ninth Circuit, have ruled that this definition applies to ATDS with regard to TCPA compliance.

Pennsylvania

A bill is progressing through the Pennsylvania House (HB 1061) which would amend Pennsylvania’s telemarketing registration law to strengthen protections for persons aged 60 or over.

House Bill (HB 318) has been sent to the governor for signature which would add legal holidays to the state’s curfew law and allow businesses to add their numbers to the state “do-not-call” list. The bill would also add an affirmative defense to “do-not-call” violations similar to that found in the TCPA.

South Carolina

A South Carolina court has refused to certify a class of persons who received a fax from Wyndham Hotels based on the fact that some recipients of the fax provided their express consent. E & G, Inc. v. Mount Vernon Mills, Inc. The court ruled that express consent presented an individualized question preventing class certification. 

Comment: This case was brought by Anderson + Wanca and is related to a group of hotels associated with Wyndham. Anderson + Wanca have brought many suits alleging these same facts, i.e. disclosures on faxes not meeting the requirements of the TCPA, even though those faxes were solicited by the recipients.