FCC Chairman Pai Proposes Measures to Reduce Unwanted Robocalls

Last week, FCC Chairman Ajit Pai proposed the implementation of a reassigned number database in an effort to reduce unwanted robocalls. According to the FCC's press release for this proposal, Commissioner Pai, "[Calls] on his fellow Commissioners to approve a reassigned number database. This database would help legitimate callers know whether telephone numbers have been reassigned to somebody else before calling those numbers so they can direct their calls to parties who asked for them rather than individuals who have subsequently obtained those reassigned numbers. Second, he is proposing to make clear that wireless providers are authorized to take measures to stop unwanted text messaging through robotext-blocking, antispoofing measures, and other anti-spam features." Learn more about robocalling laws, cell phone telemarketing rules, and autodialer laws.

Read the FCC's press release about this proposal here. Read the FCC's related report and order here.

FCC Eliminates Requirement for Opt-Out Notices on Solicited Faxes

On November 14th, the FCC struck down a rule that required opt-out notices to be included on faxes that were sent with the prior consent of the fax recipient. According to the order, the FCC, "[Takes] this action in response to the decision of the Court of Appeals for the D.C. Circuit finding that the rule 'is unlawful to the extent that it requires opt out notices on solicited faxes.' We also dismiss as moot ten pending petitions for retroactive waiver of the rule and two petitions for reconsideration of orders enforcing the rule."

Read a copy of this FCC order here. To understand more about telemarketing regulations, consult with a telemarketing lawyer, TCPA attorney, telemarketing law firm, or telemarketing attorney. Make sure you don't forget to obtain proper telemarketing licenses and telemarketing registrations in the appropriate states.

TRACED Act

A bipartisan bill titled, "Telephone Robocall Abuse Criminal Enforcement and Deterrence Act" (TRACED Act) was introduced in Congress this month. The bill would amend the Communications Act of 1934, which is the same act that the TCPA falls under. The key aspects of the TRACED Act are as follows:

• Requires that telephone service providers implement "an appropriate and effective call authentication framework in the internet protocol networks of voice service providers." 
• Requires the FCC to initiate a rule-making initiative to help protect a subscriber from receiving "unwanted calls or texts messages from a caller using an unauthenticated number."
• Creates an inter-agency working group to study government prosecution of telemarketing violations. The group would include representatives from the Department of Justice, Department of Commerce, Department of State, Department of Homeland Security, FCC, FTC, and CFPB.
• Authorizes the FCC to impose a fine of up to $10,000 against businesses or individuals that violate the TRACED Act. The FCC already has authority under the TCPA to impose fines of up to $16,000, so this new authority would be giving the agency a second umbrella under which they could impose fines. 

While this bill would certainly give the FCC more enforcement power in the telemarketing world, it's important not to overreact to any individual bill or court ruling at this time. The now conservative-leaning FCC is currently reevaluating how they will be interpreting the TCPA in wake of the ACA v. FCC decision last March. Court decisions regarding the TCPA and the definition of ATDS/Autodialers have been piling up on both sides of the aisle since then as well. The dust from ACA v. FCC has clearly not settled yet, and likely won't for at least a few more months. Regardless of the outcome, businesses can stay safe by following telemarketing rules such as only calling and texting with proper, well-documented consent, honoring all opt-out requests immediately, resisting the urge to over-dial, and frequently auditing telemarketing practices for telemarketing law compliance. Read the full text of the TRACED Act here.

FTC Settles Charges With Student Loan and Mortgage Debt Relief Company

The FTC has settled charges against a student loan relief company over allegations that they, "bilked millions of dollars out of consumers by falsely claiming to be affiliated with the federal government." The settlement includes a judgment of over $9 million, although the majority of that penalty will be suspended once the defendants turn over assets valued around $300,000. Read the FTC's press release here.

Supreme Court Agrees to Hear TCPA-Related Case

Last week, the Supreme Court agreed to take on PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., a TCPA junk fax case with potentially significant implications. The Court will focus primarily on the following issue: "Whether the Hobbs Act required the district court in this case to accept the FCC's legal interpretation of the Telephone Consumer Protection Act." The Hobbs Act grants Federal District Courts of Appeals "jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of final orders, rules, or regulations (under certain circumstances) made by or under the [Federal Communications Commission]," as well as several other entities. In other words, this Supreme Court ruling will indicate whether Federal District Courts of Appeals may challenge the FCC’s interpretation of the TCPA and if the FCC’s actions related to the TCPA or other regulations exceed the statutory authority given to the FCC by Congress. View the docket for this case here. Contact a telemarketing attorney if you need help understanding telemarketing compliance, telemarketing rules, autodialer laws, cell phone telemarketing laws, robocall laws, telemarketing fines, and telemarketing licenses.

Court Allows TCPA Claim to Continue After Death of Plaintiff

In William J. Sharp v. Ally Financial Inc., the Court has ruled that the case can continue even though the defendant passed away from cancer in 2016. William Sharp filed a TCPA complaint in 2015 after the defendant allegedly called him 24 times in an 80-minute period. New York Judge Elizabeth A. Wolford held that the case could continue after his death, as the TCPA is remedial rather than penal. Jude Wolford states in the ruling, "The private right-to-action was included in the bill so that afflicted consumers could recover damages resulting from the nuisance of abusive telephone and facsimile practices, a conclusion that suggests a more remedial character." Under Federal Law, remedial claims can survive a party's death. Read the full ruling here. Contact a TCPA lawyer if needed. Learn more about telemarketing regulations. To have a free compliance consultation, contact a telemarketing law firm.

Law Firm Wins $12.8 Million Judgment Against Alleged Caller ID Spoofers

A Miami law firm has won a $12.8 million judgment against a company that allegedly used caller ID spoofing technology to make it seem as if their insurance marketing calls were coming from the firm. The firm, Aballi Milne Kalil, noticed the issue when they started to receive numerous calls from consumers who claimed that they had missed calls from their number. The Judge in the case ordered the defendant, Sidqcon Pty Ltd., to pay damages of $10,659,000 for violations of the Florida Telemarketing Act and $2,131,800 for harmful interference with business relationships. Read a more detailed article about this judgment here.

Court Rules that Textedly Platform is not an ATDS

In Gaza v. Auto Glass America, the Court has granted the Defendant's motion for summary judgment after holding that the platform used by Auto Glass America to send marketing text messages is not an ATDS. As stated in the Court's ruling, "The undisputed record evidence shows that Defendant's representative creates and uploads a list to an online 'platform' from which customer names and phone numbers are selected, text messages drafted, a date and time of delivery is selected, and the 'send' button is pressed, all requiring human intervention." Read a copy of the Court's ruling here. Contact a Telemarketing Attorney if you need defense in a TCPA case. A telemarketing lawyer can help you understand telemarketing regulations, autodialer laws, robocall laws, telemarketing licenses, telemarketing fines, etc.

FTC Files Complaint Against Alleged "Trumpcare" Scam Operator 

Last week, the FTC filed a lawsuit against a healthcare operation that allegedly misled consumers into purchasing health insurance that offered "few, if any, of the fundamental benefits of comprehensive health insurance." The Defendant, Simple Health Plans LLC, allegedly made pitches over the phone to consumers and falsely promised health coverage for preexisting conditions and prescription medications. The company branded their insurance products as "Trumpcare." A Federal Court has granted the FTC's requested restraining order temporarily shutting down the company. Read a copy of the FTC's complaint here. Learn about telemarketing rules, ATDS Definition, and cell phone telemarketing laws. 

FTC Files Complaint Against Alleged Real Estate Scheme

The FTC has announced that they have filed a complaint against what they say is the largest alleged overseas real estate scheme that the agency has ever encountered. According to the FTC's press release, "The alleged scheme took in more than $100 million, marketing lots in what supposedly would become a luxury development in Central America known by several names, including Sanctuary Belize, Sanctuary Bay, and The Reserve. According to the FTC, the defendants duped consumers into buying Sanctuary Belize lots by falsely promising that the development would include luxury amenities and be completed soon, and that the value of the lots would rapidly appreciate. Read a copy of the FTC's complaint here and their press release about the case here.

Dismissal of Opt-Out Related TCPA Case Upheld by Ninth Circuit

In Epps v. Earth Fare, Inc., Plaintiff Jalen Epps alleged that Earth Fare Inc. had sent her numerous marketing text messages after she had opt-ed out of receiving further messages. The District Court had dismissed the case after finding that Epps had failed to show that she properly opted-out of receiving messages using the one-word opt-out function (i.e. "Reply 'Stop' to opt-out"). Epps filed an appeal, and the Ninth Circuit last month upheld the District Court's decision to dismiss the case. Read the Ninth Circuit's opinion here. Businesses that use text marketing should ensure that they only do so with the proper consent and always include the required opt-out language.  If you find yourself facing a telemarketing compliance issue or lawsuit, contact a telemarketing attorney.

California Pausing Enforcement of New Privacy Regulations

On October 26th, FCC Commissioner Ajit Pai released a statement regarding an agreement that has been reached with the State of California regarding their new state privacy regulations. As part of this agreement, "California has agreed not to enforce its new Internet regulation law pending the resolution of a petition for review of the FCC’s Restoring Internet Freedom Order in the U.S. Court of Appeals for the District of Columbia and any subsequent proceedings before the U.S. Supreme Court." Commissioner Paid praised the agreement, saying, "[There] is no urgent problem that these regulations are needed to address. Indeed, California’s agreement not to enforce these regulations will allow Californians to continue to enjoy free-data plans that have proven to be popular among consumers." Read his full statement here.

FTC and NY Attorney General Sue Owners of Alleged Debt Collection Scheme

On November 1st, the FTC and the New York Attorney General announced that they have jointly filed a lawsuit against a New York debt collection business for allegedly, "tricking people into agreeing to pay more money than what they allegedly owed." Read the FTC's press release about this case here. Businesses should always make it a priority to resolve consumer complaints before they reach the government, as regulatory action is almost always complaint-driven. If you engage in any type of telemarketing, contact a telemarketing compliance attorney to ensure you have achieved full telemarketing compliance. This will help you avoid telemarketing fines that can result form violating laws like robocall laws, autodialer laws, telemarketing license laws, cell phone telemarketing laws.

Mortgage Bankers Association Asks FCC to Adhere to Plain Language of TCPA

The Mortgage Bankers Association (MBA) has filed comments with the FCC asking the agency to adhere to a plain reading of the TCPA. According to the MBA's comments:

"A plain reading of the statute suggests the following must be satisfied for a device to be deemed an ATDS:

1. A device must be able to generate numbers in either random order or in sequential order to satisfy this definition.
2. A device must be able to store or produce those numbers called using that random or sequential number generator.
3. The device must be able to dial those numbers."

Contact a TCPA attorney here to learn more about the FCC's telemarketing laws. 

Judge Rules that Insurance Company does not have to Pay for TCPA Claims

In Zurich American Insurance Company et al v. Ocwen Financial Corporation et al, the defendant, a financial service company, requested that their insurance carrier provide defense and indemnification for the penalties associated with the defendant's alleged use of an ATDS to call consumers without the proper consent. Both Ocwen and their insurance provider filed motions for summary judgment, and the judge ruled in favor of the insurance company. After reviewing the insurance policy, the judge found, "no coverage for the underlying action." Read a copy of the decision here. Telemarketing businesses should know from long before their first day on the phones if their insurance policies have exclusions for TCPA violations. Consider working with a TCPA Lawyer, a telemarketing compliance counselor, or a telemarketing attorney that understand telemarketing rules like autodialer laws, robocall laws, telemarketing licenses, and telemarketing registrations.

FTC to Potentially Recommend Changes to CAN-SPAM 

On October 17th, the FTC announced in its regulatory agenda that agency staff will likely make recommendations to the agency's commissioners regarding the CAN-SPAM Act:

"CAN-SPAM Rule, 16 CFR 316. The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) regulates the transmission of all commercial electronic mail (email) messages. The FTC issued the CAN-SPAM Rule to implement the Act, as authorized by the statute. As part of its ongoing systematic review of its rules and guides, the Commission initiated a periodic review of the CAN-SPAM Rule on June 28, 2017. The public comment period closed on August 31, 2017. Commission staff anticipates sending a recommendation to the Commission by December 2018."

When the agency asked for comments in 2017, the request was specifically about the 10-day email opt-out window and the definition of transactional emails. Any changes would most likely be related to those two aspects of the CAN-SPAM act.

"Swipe Right to Sue"

A somewhat unnerving article was published in the Washington Post last week about a new app that will allow users to file lawsuits by "swiping right," similar to the functionality of a dating app. The app, named "DoNotPay," asks users a series of questions and allows them to "sue someone with their smartphones and claim awards from class-action lawsuits the same way they’d select a match on Tinder." Read the full article here. While it is far too early to see if this app will survive in the competitive technology world, the concept is concerning as it might further enable serial plaintiffs to file frivolous lawsuits. Contact a call center law firm if you are getting sued by a serial TCPA plaintiff.

FCC Takes Action Against Two Companies for Alleged Telemarketing Violations

Late last month, the FCC announced actions against two companies for allegedly violating Federal telemarketing regulations. First, the FCC proposed a $37.5 million forfeiture against Affordable Enterprises of Arizona, LLC for allegedly "unlawfully spoofing caller ID information to perpetrate a large-scale illegal telemarketing campaign." Second, the FCC proposed an $82 million forfeiture against Best Insurance Contracts, Inc. for allegedly "perpetrating an illegal spoofed robocall campaign involving more than 21 million robocalls during a three-month period from late 2016 through early 2017."

Read about these FCC Actions here and here. Learn about other FCC telemarketing laws, such as: Robocalling laws, autodialer laws, telemarketing licensing, telemarketing registrations, and telemarketing rules.

35 Attorneys General Submit Comments to FCC Regarding Robocalls

Last week, 35 state Attorneys General jointly submitted comments to the FCC imploring the agency to implement new rules to combat illegal robocalls. This was done as a response to the FCC's request for comments regarding methods of blocking illegal robocalls. One of the main themes of the letter is their support for a new "STIR/SHAKEN" method:

"Those concerned with battling illegal robocalls and illegal spoofing have been waiting for voice service providers to fully implement the STIR (Secure Telephone Identity Revisited) and SHAKEN (Secure Handling of Asserted information using toKENs) protocols – frameworks that service providers can utilize to authenticate legitimate calls and identify illegally spoofed calls. The State AGs see the industry is making progress concerning this initiative. On September 13, 2018, the Alliance for Telecommunications Industry Solutions (“ATIS”) filed a letter at this docket announcing the launch of the Secure Telephone Identity Governance Authority (“STI-GA”), which is designed to ensure the integrity of the STIR/SHAKEN protocols. With the launch of the Governance Authority, the remaining protocols can be established. Reports indicate STIR/SHAKEN will be operational by some carriers throughout next year."

Read the full letter here. To understand telemarketing compliance, contact a telemarketing lawyer, TCPA attorney, or telemarketing law firm.

FTC Settles Charges Against Alleged Perpetrator of Amazon Get-Rich-Quick Scheme

The FTC has settled charges against defendant Jeffrey A. Gomez for $63.5 million, most of which will be suspended when Gomez has surrendered $2.55 million in funds and assets to the FTC. The FTC alleged that Gomez and his businesses, "[Falsely] claimed their 'Amazing Wealth System' would enable consumers to create a profitable online business selling products on Amazon. Buyers, however, did not earn the advertised income. Most of them lost significant amounts of money, and many experienced problems with their Amazon stores, including suspension and losing their ability to sell on Amazon.com." Read the FTC's press release about this settlement here.

FCC Requests Comments on TCPA in Wake of Marks Ruling

The FCC's Consumer and Governmental Affairs Bureau is "[Seeking] further comment on how to interpret and apply the statutory definition of automatic telephone dialing system, including the phrase ‘using a random or sequential number generator,’ in light of the recent decision in Marks, as well as how that decision might bear on the analysis set forth in ACA International.” In Marks v. Crunch San Diego, LLC, the court held that the term ATDS includes any device with the capacity to store numbers in a list and dial them automatically. This is just one of many different rulings that have come out in the aftermath of the recent ACA v. FCC Court of Appeal’s decision that vacated the FCC’s previous interpretation of autodialers. Judges have been ruling on both sides of the aisle in the debate over what exactly constitutes an ATDS. Read the FCC’s press release and learn how to submit comments. Learn more about the definition of autodialer, telemarketing rules, telemarketing licenses, and telemarketing law firms. If you have any telemarketing compliance need, don't hesitate to call a telemarketing attorney or TCPA lawyer.

Representatives Show Support for Common Sense TCPA Reform

Last month, House Judiciary Committee Chairman Bob Goodlatte wrote a letter to FCC Chairman Ajit Pai showing his support for TCPA reform. Chairman Goodlatte wrote:
"I applaud the FCC's recent efforts to update its approach to the Telephone [Consumer] Protection Act ("TCPA"), as well as its efforts in cracking down on abusive and illegal robocalls. Furthermore, the D.C. Circuit's recent ruling in ACA International v. FCC...provides the Commission an opportunity to correct and clarify several areas of the TCPA and the 2015 TCPA Omnibus Declaratory Ruling, which, according to the Institute for Legal Reform, resulted in a 46% increase in TCPA case filings. Using this decision as a road map to bring common sense back to the TCPA, I recommend that the FCC clarify the term "automatic telephone dialing system" ("ATDS"), according to the plain language of the law and consistent with Congressional intent, to mean equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention. Moreover, the FCC should find that only calls made using actual (not theoretical) ATDS capabilities are subject to the TCPA's restrictions."
Read Representative Goodlatte's full letter here.
Learn more about autodialer laws, robocall laws, telemarketing registrations, and telemarketing regulations.
Representative Michael C. Burgess, Chairman of the House Committee on Energy and Commerce, also recently wrote a letter to Chairman Pai in support of TCPA reform:
"It is imperative the FCC develop an updated TCPA framework that both protects consumers while maintaining the ability of good faith callers to contact consumers. This should be consistent with the Congressional direction in the 1991 TCPA and reflect emerging technologies that are helping consumers manage calls. The TCPA was not intended to be a barrier to normal communications between businesses and their customers. Under this approach, the FCC should find that only calls made using actual, not theoretical, ATDS capabilities are subject to the TCPA's restrictions."
Read Representative Burgess' full letter here.

Allen Legal's Feedback From Two Significant Recent Compliance Summits

Last week, representatives from the FTC visited Utah to present on consumer fraud and abuse in conjunction with the Utah Division of Consumer Protection.  The event was well-attended in Salt Lake City, but mostly by regulators and law enforcement.  Allen Legal staff were some of the only private compliance/defense attorneys present. The presentations were educational and reiterated that their investigations and enforcement remain complaint-based. Meaning, reducing or eliminating consumer complaints to regulatory agencies should be a top priority for marketers.  The online sale of nutraceuticals and telemarketing sales of home business opportunities both remain on the Division's short list of top complaints received.

Eric Allen from our firm also attended the PACE national compliance summit earlier this week in Washington DC, the presenters at which included both the FTC and FCC, among others.  Lois Greisman of the FTC emphasized that robocall enforcement will continue to be aggressive in 2019 and that companies cannot turn a blind eye to lead and call vendor violations.  Mark Stone of the FCC spoke about possible new forthcoming TCPA regulations, further redefining the definition of an ATDS and other important issues, especially in light of the recent decision in ACA Int'l which overturned their prior definitions. Contact a TCPA lawyer if you need help making sense of any of this information.


Learn more about telemarketing fines and robocall laws. If you need a telemarketing lawyer to help you with telemarketing compliance, call 801-930-1117.

Court Finds that Predictive Dialer is not an ATDS

Over the last few months, court rulings have been piling up on both sides of the aisle in the debate over what exactly constitutes an ATDS. Recently, and in stark contrast to the recent Marks v. Crunch Ninth Circuit decision, the court held in Fleming v. Associated Credit Servs. that a predictive dialer is not covered under the TCPA.

Below is an excerpt from the Judge's ruling:

"I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling it also necessarily set aside the parts of the previous 2003 and 2008 FCC Orders that ruled that a predictive dialer was impermissible under the TCPA. . . The TCPA explicitly defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Does a system that dials numbers from a list that was not randomly or sequentially generated when the list was created qualify as an ATDS? With only the statutory text to guide me, I am convinced that the answer is no."
Learn more about autodialer laws and the definition of ATDS.

Uber Reaches $148 Million Settlement with State AGs in Data Breach Case

Popular ride-sharing service Uber has agreed to a $148 million settlement with the Attorneys General from all 50 states and the District of Columbia. A November 2016 hack of Uber's systems left important driver data compromised. Uber didn't make the breach public until November 2017, which violated laws that many states have in place that require businesses to inform their customers and/or employees as soon as possible in the event of a data breach. Read more here. Businesses should ensure that they have a proper data beach response plan in place.

Christine S. Wilson Sworn in as New FTC Commissioner

President Trump has named former Delta executive Christine S. Wilson as a new FTC Commissioner after former Commissioner Maureen K. Ohlhausen announced her departure last week.  Read the FTC's press release here.

Recreational Equipment Seller Settles FTC Charges for False "Made in USA" Claims

Four New York businesses that sell hockey pucks and other recreational equipment have agreed to settle an FTC lawsuit filed over allegations that the companies advertised their goods as being "Made in USA," when in reality they were made overseas. As part of the settlement, the defendants have been banned from "making unqualified U.S.-origin claims for their products, unless they can show that the products’ final assembly or processing -- and all significant processing -- take place in the United States, and that all or virtually all ingredients or components of the product are made and sourced in the United States." Read the FTC's press release about the settlements here.

FTC Shuts Down Another Alleged Business Coaching Scheme

The FTC filed a lawsuit against defendant Sean Brown for allegedly helping operate a business coaching scheme. Among the specific allegations, the FTC claimed that Brown and his company Digital Altitude, "falsely promised to provide individualized coaching from successful marketers, who in fact were just salespeople selling costlier membership levels." The FTC also alleges that the defendant misrepresented how much money individuals could make through the program. Businesses operating in spaces that the FTC and State AGs might consider to be "BizOps" should ensure that they reduce and resolve consumer complaints as quickly as possible. As a best practice, always refund customers who ask for their money back. Read more about this case here. Make sure you understand telemarketing rules and telemarketing regulations so that you can ensure 100 percent telemarketing compliance. Contact a telemarketing law firm or TCPA attorney if you need help with things like autodialer compliance,  telemarketing registrations, or robocall laws.

Man Imprisoned in Italy for Writing False TripAdvisor Reviews

A man in Italy has been put in jail by Italy's Postal and Communications Police for allegedly offering to write fake, positive reviews for businesses on TripAdvisor.com. Read more here. In the U.S., it is illegal to pay individuals to write reviews or testimonials without disclosing that the reviewer was compensated for doing so. If you violate that law, you could be sued by the FTC or a State Attorney General. Learn how to respond to an Attorney General in a telemarketing case.

Does a Spouse's Opt-in Count?

In Rodriguez v. Premier Bankcard, the plaintiff filed a TCPA lawsuit after a financial company made unsolicited calls to her cell phone. While the plaintiff had never opted-in to receive the calls, it turns out that her husband had included her number as a valid way to contact him when he was signing up for financial services from the defendant. The husband was the subscriber to the number, although the plaintiff was the primary user of the line. The Court held that a subscriber may give consent for a phone number to be called, even if the subscriber is not the primary user of the line. Read the full opinion here. Learn more about telemarketing compliance. What telemarketing fines are there? Contact a TCPA lawyer if you are facing a telemarketing lawsuit.

FTC Shuts Down Debt Collection Business

In a settlement with the FTC, a Georgia debt collection business has been banned from operating in the debt collection industry. The FTC alleged that the defendants used false claims and threatening tactics to get people to pay debts. Additionally, they allegedly tried to collect on debts that had already been paid and illegally contacted consumer's employers and other third parties. Most FTC actions are a result of consumer complaints. Ensure that reducing and resolving consumer complaints is one of your business' top priorities. Read the FTC's press release about this case here. Make sure you consult with a TCPA attorney to understand different telemarketing rules so that you can avoid trouble like this.

FCC to Seek Comments Regarding Implementation of Kari's Law

The FCC has released a Notice of Proposed Rulemaking regarding Kari's Law, which was signed into law by the president. In 2013, Kari Hunt was murdered by her husband in a motel room. Their daughter tried to call 911 on the motel phone, but the phone line didn't' have the capacity to make an emergency call without a pre-dialed digit. Kari's law will make it a requirement for phone systems in complex buildings like hotels, hospitals, schools, etc. to have the ability to dial 911 without any prefixes.  The FCC has released the notice and asked for comments in order to get feedback on the best way to implement the law. Read the Notice of Proposed Rulemaking here. Make sure you understand all telemarketing regulations.

Judge Dismisses Meritless TCPA Suit

In Johansen v. National Gas & Electric, the Judge has dismissed the case because the plaintiff gave the indication to the defendant that he was an interested customer before filing a lawsuit for alleged TCPA violations. Below is a key section of the Judge's analysis:

A call is excluded from the definition of a “telephone solicitation” if it is placed “to any person with that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4). When an ETM representative proposed during the June 14 call that an enrollment specialist would call plaintiff, he responded, “Okay, great. Sounds good.” Doc. 36-4 at p. 3. In the calls which followed over the next several days, plaintiff never stated that he did not wish to receive any more calls. He kept agreeing to be called by an enrollment specialist and even attempted to call NG&E to complete the enrollment process when one of the calls got cut off.

Click here to read a copy of the Judge's opinion and order. Contact a TCPA attorney if you find yourself  in a situation like this. Learn more about cell phone telemarketing laws and do-not-call regulations.

Avaya Dialing System Held to be ATDS

In Heard v. Nationstar Mortgage LLC, the Court has held that the Avaya predictive dialer meets the definition of ATDS, even if the FCC's previous definitions of ATDS were overruled by the recent ACA v. FCC decision. The court zeroed in on the Avaya system's ability to "store" numbers, thus in part fitting the original statutory definition of an autodialer. Read the court's full opinion and order here. While this ruling is negative for the industry, there have been several positive rulings in recent months as well. The FCC will most likely be reevaluating its stance on autodialers in the upcoming months, as indicated in a recent letter from FCC Chairman Ajit Pai to several U.S. Senators. Although there have been court decisions on both sides of the issue, the upcoming FCC actions will be much more significant as the FCC is the agency charged with enforcing the TCPA and determining what an ATDS really is.  Learn more about the definition of ATDS, autodialer laws, robocall laws, and telemarketing compliance. Call a telemarketing lawyer if you have an urgent need that only a telemarketing law firm can help with.

FTC Publishes Tips on Spotting "Small Business Coaching Scams" 

Last week, the FTC published an article to help consumers spot alleged "Small Business Coaching Scams." Click here to read this article. Unfortunately, many legitimate businesses in the direct marketing industry are mistaken for business coaching scams. Make sure you understand what red flags consumers might see to come to this conclusion. For example, as stated in the FTC's article, "Some scammers sell bogus business coaching and internet promotion services. Using fake testimonials, videos, seminar presentations, and telemarketing calls, the scammers falsely promise amazing results and exclusive market research for people who pay their fees. They also may lure you in with low initial costs, only to ask for thousands of dollars later. In reality, the scammers leave budding entrepreneurs without the help they sought and with thousands of dollars of debt." To prevent consumers from reaching those conclusions about your business, make sure you only use real testimonials, only promise real results, and be honest about what costs are associated with your services. Reducing and resolving consumer complaints should be a priority for any direct marketing business. Learn how to respond to an Attorney General.

Michigan Court Finds that Dialers Calling from a List Do Not Automatically Qualify as ATDS

An opinion out of the Eastern District of Michigan has found that a dialer calling from a list does not automatically qualify as an ATDS under the TCPA unless it generates the dialed numbers sequentially or randomly. The court based this decision in part on the recent ACA v. FCC decision, which set aside the FCC's overly broad definition of ATDS. Read the full opinion here. Read more about the definition of ATDS, autodialer laws, robocall laws, telemarketing compliance, and cell phone telemarketing laws.

Cirque du Soleil Escapes TCPA Class Action

The popular entertainment company Cirque du Soleil has been fighting a TCPA class action lawsuit for alleged faxing violations since 2009. However, due to a recent Supreme Court decision that put an end to the tolling of the statute of limitations when class action lawsuits are pending, the case has now been dismissed. Read a detailed article about Cirque du Soleil's win here. If you are facing a TCPA class action lawsuit, contact a TCPA attorney or telemarketing lawyer.

Nevada Secretary of State Announces Office Relocation

Companies doing business in Nevada will want to take note of the Secretary of State's new address. The Nevada Secretary of State has announced that the office which handles commercial recordings, document preparation services, Nevada Lockbox, domestic partnerships, securities, and trademarks will be relocated. The office will now be in the City of North Las Vegas City Hall Building in North Las Vegas. The address is 2250 Las Vegas Boulevard North, North Las Vegas, NV 89030. Learn more about telemarketing licenses and telemarketing registrations.

Louisiana Increases Penalties for Violations of State's Caller-ID Spoofing Laws

Last week, Louisiana's new "Anti-Caller ID Spoofing Act" went into effect. The Act makes it illegal for a caller to "knowingly insert false information into a caller identification system with the intent to mislead, defraud, deceive, cause harm, or wrongfully obtain anything of value." The new law gives the Attorney General the authority to seek fines of up to $10,000 per violation. Additionally, consumers can now sue marketers under a new private right of action. While the amount that they can sue for isn't specified, the new law indicates that consumers can sue for, "injunctive relief, treble damages, court costs, and reasonable attorney fees." Read the text of the new law, indicating the exact changes from the old law, here. Learn about how to respond to an Attorney General. Learn more about telemarketing regulations. Consider consulting with a telemarketing attorney if you are worried that you aren't in full compliance with telemarketing laws.

Uber Facing TCPA Class Action

The popular ride sharing app Uber is facing a TCPA class action lawsuit after they allegedly send over 30 marketing text messages to a man after he opted out from receiving additional messages. The case is Shelton Bollinger v. Uber Technologies Inc. Bollinger alleges that the text messages were disruptive to his life as they were received early in the morning or late at night. Read more information about this case here. To avoid being sued in a lawsuit like this, make sure you are in compliance with all telemarketing rules. To avoid getting in trouble for telemarketing violations, be sure to understand autodialer laws, robocall laws, do not call regulations, and telemarketing license requirements. Telemarketing fines could await you if you don't practice full telemarketing compliance.

 

FTC Approves Revisions to Jewelry Guides

The FTC has approved significant revisions to its "Guide for the Jewelry, Precious Metals, and Pewter Industries." The goal of the revisions was to further prevent deception in jewelry marketing. A brief summary of the changes from the FTC's press release is as follows:

Using comments and information obtained during a June 2013 public roundtable, in January 2016, the agency proposed, and sought public comments on, revisions to the Guides regarding below-threshold alloys, precious metal content of products containing more than one precious metal, surface application of precious metals, lead-glass filled stones, “cultured” diamonds, treated pearls, varietals, and misuse of the word “gem.”

Based on the overall record, the Commission has approved revisions to help align the Jewelry Guides with Section 5 of the FTC Act by tying guidance to consumer expectations, and to address technological developments and related changes in industry practice, providing needed clarification and greater flexibility for businesses.

Specifically, the revisions address (1) surface application of precious metals, (2) alloys with precious metals in amounts below minimum thresholds, (3) products containing more than one precious metal, (4) composite gemstone products, (5) varietals, (6) “cultured” diamonds, (7) qualifying claims about man-made gemstone products, (8) pearl treatment disclosures, (9) use of the term “gem,” (10) misleading illustrations, (11) the definition of “diamond,” and (12) exemptions recognized in the assay for gold, silver, and platinum.

Read the full FTC press release here.

FTC Returns Money to Consumers Targeted by Alleged Debt Collection Scheme

Nearly 600 checks totaling over $184,000 will be sent to consumers who were allegedly deceived by defendant Delaware Solutions into paying phony debts. The defendants agreed to the financial settlement and they have been banned from the debt collection industry. Read the full press release about this issue here.

FTC and Several States Combat Alleged Fraudulent Charities

According to last week's FTC press release, "The Federal Trade Commission, along with law enforcement officials and charity regulators from 70 offices in every state, the District of Columbia, American Samoa, Guam and Puerto Rico, announced more than 100 actions and a consumer education initiative in 'Operation Donate with Honor,' a crackdown on fraudulent charities that con consumers by falsely promising their donations will help veterans and servicemembers." Make sure you understand telemarketing rules so that you can avoid trouble like this. Learn more about charitable telemarketing laws.

TCPA Litigation Down in June

Litigation under the TCPA, FDCPA, and FCRA was down in the month of June. Overall during 2018, TCPA litigation is down almost 20% from 2017. Read more statistics in WebRecon's most recent report. Watch our short video about responding to a TCPA lawsuit. Contact a TCPA attorney if you're involved in a TCPA case.

FCC Acts to Prevent Fraud in Toll Free Texting

Last month, the FCC issued a Declaratory Ruling and Notice of Proposed Rulemaking in which the agency proposed new rules to prevent fraud in toll free texting. An example of the potential for fraud was provided by the FCC:

"For example, a toll free number on the back of a credit card could be text-enabled by a third party without the knowledge of the bank that subscribes to the toll free number, and fraudulent texts could then be sent to a consumer asking for sensitive account information."

Read the full press release, which includes the specifics of the proposed rules, here. Related: Is Text Marketing Legal? Learn more about text marketing laws.

Judge Rules that Ringless Voicemail Drops are Covered by the TCPA

In a first of its kind ruling, a Michigan Judge has ruled that ringless voicemail drops are "calls" under the TCPA. The case is Karen Saunders v. Dyck O’Neal, Inc. This is the first instance of a judge making a ruling regarding the legality of ringless voicemail technology, although the FCC and most states have remained silent on the issue. Read the full order here. While this decision creates no binding precedent on any other case, thankfully, other judges might at least look at it when making their own decisions. Learn more about telemarketing compliance.

South Carolina Telephone Privacy Protection Act Signed into Law

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Court Affirms Summary Judgment in Favor of Yahoo

In Dominguez v. Yahoo, the plaintiff sued Yahoo for allegedly sending him over 27,000 unsolicited text messages using an ATDS. The previous owner of Dominguez's phone number had opted in to receive the texts every time he or she received an email, which is why Dominguez continued to receive so many text messages even after the number was reassigned. However, the issue that brought forth the law suit was whether Yahoo was using an ATDS to send the messages. The court held that, "Ultimately, Dominguez cannot point to any evidence that creates a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers. On the contrary, the record indicates that the Email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user. There can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages. But those messages were sent precisely because the prior owner of Dominguez’s telephone number had affirmatively opted to receive them, not because of random number generation." Read the full ruling here. Consider hiring a telemarketing lawyer or TCPA lawyer to help you if you find yourself in a similar situation to Yahoo. Ensure full telemarketing compliance and understand the most important telemarketing rules.

13 Senators Write Letter to FCC Urging Strong TCPA Regulation

Thirteen U.S. Senators recently wrote a letter to FCC Commissioner Ajit Pai urging him to "ensure that key robocall protections under the Telephone Consumer Protection Act (TCPA) remain in effect." The letter also outlines the Senators' requests regarding the definition of ATDS, reassigned number protections, and revocation of consent. Read the letter here.

Independence Day Call Restrictions

Remember that telemarketing is not allowed in the following states on the 4th of July:

• Alabama 
• Louisiana 
• Mississippi 
• Rhode Island 
• Utah 

Learn more about telemarketing regulations, autodialer laws, robocall laws, and dnc regulations.

Australian Woman Allegedly Harassed by Lead Generators

It's always interesting to hear news about telemarketing regulations and issues in other countries. In Australia, a woman has allegedly been harassed by legal lead generators after she was injured and her son killed in an auto accident. The lead generators allegedly called her and said, "Have you had an accident in the past year? We can get you compensation." The woman claims that she continued to receive these calls even after telling them she already had representation for her injury claim. This practice, known as "Claim Farming," is generally banned in most Australian states. Read the full news story here. Call a telemarketing attorney today.

Court Holds that Manual Clicking Platform is Not an ATDS

Yet another good click-to-call court decision this year: In Bria Maddox v. CBE Group, Inc., a judge has ruled that CBE's Manual Clicker Application is not an ATDS because it requires call-by-call human intervention. The judge has granted CBE's motion do dismiss the TCPA claim of the plaintiff. Read the full order here. Learn more about the definition of ATDS, telemarketing compliance, and telemarketing regulations.

TCPA Litigation Down Relative to 2017

WebRecon has released new data showing litigation statistics related to complaints under regulations like the TCPA and FDCPA. The number of TCPA cases filed between January and April 2018 is down by over 17% relative to the same period last year. Read WebRecon's full report here. It's too early to say if this is a result of the recent ACA v. FCC decision, but this is an interesting trend to keep an eye on over the upcoming months. Contact a TCPA lawyer or a telemarketing compliance lawyer if you find yourself involved in a TCPA lawsuit.

Student Loan Debt Relief Operation Settles FTC Charges

The FTC has reached a settlement with Strategic Student Solutions and Bloom Law Group for allegedly charging consumers illegal fees and making false promises to reduce their student loan debt. According to the FTC's press release, Strategic Student Solutions "preyed on consumers with student loan debt by falsely promising to reduce their debt or payments through enrollment in student loan forgiveness or other programs. The defendants also falsely promised to apply monthly payments to consumers’ student loans and to improve credit scores and histories in addition to making other false claims and charging unlawful advance fees." The allegations against Bloom Law Group are similar. Businesses should keep in mind that cases like this are almost always sparked by consumer complaints. To mitigate the risk of facing FTC action, a good starting point is to resolve consumer complaints as quickly as possible. Read the FTC's press release here. If you need compliance or defense help, contact a telemarketing compliance attorney.

Judge Rules Consent Cannot be Revoked Orally when Part of Written Contract

A Judge has granted the defendant's motion for summary judgment in Barton V. Credit One. Plaintiff Carlton Barton sued Credit One for violations of the TCPA after they called him several times to inquire about an outstanding balance owed on his credit card, which he had obtained through Credit One. Barton claimed that he opted out of the phone calls orally, but that Credit One continued to call him. The Judge held that because he had consented to receive such calls in his cardholder agreement, and that the cardholder agreement included instructions for opting out of those calls in writing, oral revocation of consent was insufficient. Read the complete opinion here. Learn about telemarketing consent and other telemarketing rules. Consider speaking with a telemarketing attorney to learn about telemarketing compliance topics like autodialer laws, cell phone telemarketing laws, do-not-call list compliance, etc.

FCC Finalizes $120 Million Fine Against Alleged Caller ID Spoofer

After first proposing the fine several months ago, the FCC has concluded its investigation into Adrian Abramovich's alleged caller ID spoofing operation. The FCC has fined Abramovich $120 million for "malicious spoofing that was part of his massive robocalling operation aimed at selling timeshares and other travel packages." Read the FCC's press release here.

Court of Appeals Rules in Favor of FTC in Avatar Technology Case

Many of you may recall that last year the FTC began treating calls using Avatar, or soundboard, technology the same as any other prerecorded robocall. The FTC published a Staff Advisory Letter announcing that change in November 2016 and officially implemented the new interpretation of the technology in May 2017. The Soundboard Association sued the FTC and then appealed after the US District Court ruled in favor of the FTC. On April 27th, the DC Court of Appeals held that "the letter was properly issued and didn’t violate the Administrative Procedure Act’s notice-and-comment requirements." This is a blow to those who were hoping that there would be decreased regulation over this technology, which relies on human intervention to carry on the calls using prerecorded voice snippets. Read the FTC's press release here. Learn more about avatar telemarketing compliance and other telemarketing regulations.

FCC Seeks Comments on TCPA with Eye Toward Reform

Last week, the FCC published a Public Notice seeking comments on a number of TPCA issues that have recently been causing ripples in the industry. Specifically, the FCC is looking for comments about the following: 1) What constitutes an “automatic telephone dialing system” (ATDS); 2) How to treat calls to reassigned wireless numbers under the TCPA; and 3) How may a called party revoke prior express consent to receive robocalls? There are reasons to be optimistic about this notice. The current leadership of the FCC has been vocal in their criticisms of previous interpretations of ATDS. This notice could very well be an important step towards having more business-friendly telemarketing regulations at the Federal level. Those who would like to see that outcome shouldn't miss this opportunity to comment and express their opinions to the leadership of the FCC. Comments are due by June 13, 2018. Click here for more details and comment instructions. To ensure full TCPA compliance, consider having a telemarketing attorney perform a telemarketing audit of your company. A telemarketing lawyer can help with do-not-call laws, telemarketing registrations, telemarketing licenses, avoiding telemarketing fines, telemarketing rules, and a variety of other telemarketing compliance services.

Courts Reach Conflicting Conclusions about Predictive Dialers in Recent TCPA Cases

The Public Notice mentioned in the previous section will hopefully be a significant step towards establishing some clarity in what has become a foggy TCPA compliance environment. An example of the lack of concreteness in the law was seen last week. Two separate judges, several thousand miles apart, issued contradictory rulings on May 14th about predictive dialers and the definition of an ATDS.

In Reyes v. BCA Financial Services, Inc., the Judge held that the predictive dialer used by the defendant was an ATDS under the FCC's 2003 order that defined an ATDS as "an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” The Judge held that this 2003 definition still applied, despite the recent DC District Court's decision in ACA Int'l vs. FCC, which basically threw the exact definition of an ATDS up in the air.

In Herrick v. GoDaddy.com LLC, however, the Judge held that ACA Int'l vs. FCC did do away with the 2003 order. Reliance on those orders or any subsequent court ruling is rejected because, "these courts were bound and guided by the now-defunct FCC interpretations regarding this function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”

While these contradictory rulings may cause some in the industry a headache, there is a glimmer of light on the horizon as the FCC certainly appears to be in the early stages of taking action to clear up this mess.
Contact a TCPA lawyer here. A TCPA Lawyer can you with a variety of telemarketing compliance topics like cell phone telemarketing laws, robocall laws, autodialer laws, etc.

New Director of FTC's Consumer Protection Unit Appointed

Andrew M. Smith has been confirmed as the new Director of the FTC's Consumer Protection Unit. He's leaving his position as a Partner at the law firm Covington & Burling to head the unit. Read the FTC's press release here.

Collections Firm Agrees to $5 Million Settlement for Allegedly Failing to Disclose Recorded Calls

Debt collection firm Medicredit, Inc. has agreed to a preliminary settlement of $5 million to settle a class action lawsuit that was filed over allegations that they failed to disclose to consumers that calls were being recorded. Many states have call recording and disclosure regulations. As a best practice, businesses should always disclose when calls are being recorded, regardless of which state the calls are being made into. Read a copy of the settlement agreement here. Learn more about telemarketing rules and telemarketing compliance.

New Jersey Judge Rules in Defendant's Favor in TCPA Consent Case

In Nicole Rando v. Edible Arrangements International, Inc., a New Jersey judge has granted the defendant's motion to dismiss. Plaintiff Nicole Rando filed the class action lawsuit after she allegedly received unsolicited text messages from Edible Arrangements. Rando claimed that she continued to receive several messages after she had opted-out. The wording that she used to opt-out included: (1) "Take my contact info off please." (2) "I want to confirm that I have been removed off your contacts." (3) "I asked to be removed from this service a few times. Stop the messages." and (4) "Again I want to stop this service thank you." The automated instructions provided by Edible Arrangements indicated that the proper way to opt-out was to simply say "stop," which Rando never did. The judge held that because Rando had never appropriately opted-out, Edible Arrangements could not be held liable for the unsolicited texts. Although this is a favorable ruling for the industry, businesses should honor all opt-out requests, even if the wording isn't exactly as instructed. Read a copy of the judge's decision here. Contact a TCPA lawyer or telemarketing attorney if you are ever facing a similar TCPA case.

Man Fighting $120 Million FCC Fine 

Last June, the FCC filed a complaint against a man who allegedly made over 96 million illegal robocalls to consumers. The agency claims that at least 80,000 of those calls included spoofed caller ID information, a violation of the Truth in Caller ID Act. The defendant, Adrian Abramovich, appeared before the senate last week and argued that he is “not the kingpin that is alleged.” Read a Newsweek article about this case here. Learn more about telemarketing fines here.

Nevada Federal Court Rules that CBE Group's Product is not ATDS

A Nevada Federal Court has ruled in favor of the defendant in Marshall v. The CBE Group, Inc. The plaintiff in the case filed a TCPA lawsuit alleging that The CBE Group (CBE) had called her using an ATDS. Citing the recent ACA v. FCC decision and stating that it would apply a strict definition of ATDS, the court held that CBE's, "communications infrastructure does not constitute an ATDS." The plaintiff failed to show that CBE's system could make calls without call-by-call human intervention. Read the decision here. Learn more about the definition of ATDS here.

Recent State Law Changes

Three state laws have been passed that will affect telemarketers doing business in certain states: 1) In Florida, "Voicemail Transmissions" will now be viewed the same as "Telephonic Sales Calls" under the state's telemarketing act. A “Voicemail Transmission” will be defined as "technologies that deliver a voice message directly to a voicemail application, service, or device." 2) Florida statute § 501.6175 requires telephone sellers to keep records of their calling information for two years after the date that the information first becomes part of their business records. Call logs, consent and request data, and scripts are all required to be saved for two years under this new statute. 3)  West Virginia has passed House Bill 4150, which "[Prohibits] telemarketing companies from transmitting misleading or inaccurate caller identification information." Make sure you understand all telemarketing regulations so that your business can have full telemarketing compliance. Consult with a telemarketing attorney if you'd like to have a telemarketing audit performed. A telemarketing lawyer can help you understand robocall laws, autodialer laws, cell phone telemarketing laws, etc.

Bill that will Regulate Sending Call Centers Overseas Slowly Gaining Momentum

A bill that will add extra steps and costs for companies that want to move their call centers overseas was introduced in congress last year. While the bill has a long way to go before it becomes law, it has slowly been gaining momentum. It now has 32 co-sponsors. The bill requires businesses with at least 50 call center employees to notify the Department of Labor at least 120 days before moving their call center out of the country. Failure to do so could result in fines up to $10,000 per day. Also included in this bill, businesses with call centers outside of the US must require their agents to disclose their physical location at the beginning of each call. Read a summary and the text of the bill here. Learn about additional telemarketing rules here.
 

FCC Publishes Second Further Notice of Proposed Rulemaking

After several weeks of anticipation, the FCC has officially published its Second Further Notice of Proposed Rulemaking regarding Advanced Methods to Target and Eliminate Unlawful Robocalls. As stated in the press release, "In this Second Further Notice of Proposed Rulemaking, as part of our multiple-front battle against unwanted calls, we propose and seek comment on ways to address the problem of unwanted calls to reassigned numbers. This problem subjects the recipient of the reassigned number to annoyance and wastes the time and effort of the caller while potentially subjecting the caller to liability." Read the press release, which includes instructions for commenting, here. Learn more about FCC Telemarketing Laws, new FCC Rules, and telemarketing regulations.
 

Florida Bill will Regulate Ringless Voicemail

The Governor of Florida has signed a bill that will regulate ringless voicemail by expanding the definition of a "telephonic sales call" to include "voicemail transmissions." As defined in the bill, "voicemail transmissions" are "technologies that deliver a voice message directly to a voicemail application, service, or device." Read the full text of the bill here. To learn more about ringless voicemail compliance, contact a telemarketing attorney who can perform a full telemarketing compliance audit of your business's telemarketing compliance. 

ACA Int'l v. FCC

Last Friday, March 16, the D.C. Circuit published its significant decision in ACA Int'l v. FCC regarding, among other things, what an autodialer (ATDS) is.  While the appeal involved 4 separate issues, the industry prevailed on 2 of the 4 - the more important 2 in our view: autodialers and reassigned numbers.  Before you get too excited, the D.C. Circuit did not invalidate the general prohibition on autodialing cells without consent.  Rather, it set aside the FCC's overly broad "capacity" ATDS definition.  The Court's primary argument was that under such a standard, every smartphone would be an autodialer because they could all potentially be used to download autodialing apps.  This was the same argument our industry made when the FCC order was published in July of 2015.  The Court agreed, stating this would create an "unreasonable and impermissible standard."  The rule remains, however, that you may not use an autodialer to call/text a cell phone without consent.  So nothing about this new decision expressly allows us to use a predictive dialer to cold call cells.  Individual courts will now need to look back at the statute and decide whether they believe the language covers predictive dialers or not - some will find in our favor and some will not.  It is very possible that the new leadership at the FCC will make further positive changes to ATDS standards, now that the D.C. Circuit has ruled. Companies will need their calling systems re-reviewed at this time to ensure they have no significant ATDS exposure, despite this ruling.  It will, no doubt, be easier going forward to establish that manual calling systems are not autodialers merely because they could potentially be upgraded to have ATDS capacity.  This is a very welcome legal development.  We will publish more on the other 3 issues involved in the appeal in the coming days: reassigned numbers, consent revocation, and the scope of the healthcare exemption.  There is not room to address all of these issues here, especially where other important legal updates need to be made today as well (below). This is a major breakthrough in the telemarketing industry. Schedule a consultation with a telemarketing attorney if you'd like to discuss it further. Learn more about telemarketing compliance, telemarketing regulations, ATDS definition, and autodialer laws.

Feature Films For Families Settles FTC Case Involving Alleged DNC Violations

In 2016, a federal jury found that three Utah-based companies had illegally called more than 117 million consumers to pitch movies - equating to a potential fine over 1 trillion dollars.  Last week, the defendants agreed to voluntarily settle the case (already had verdict but no judgment) against them. The final stipulated judgment imposes a $45.5 million civil penalty, of which the defendants will only be required to pay $487,735 unless they are found to have misrepresented their financial condition. This is a lot better than a trillion dollars, of course.  Read the FTC's press release here. Learn more about cell phone telemarketing laws and do-not-call regulations.

FTC Shuts Down Cryptocurrency Promoters

The FTC has obtained a court order shutting down a defendant for allegedly promoting deceptive money-making opportunities involving cryptocurrencies. The FTC's complaint alleges that the defendants, "promoted chain referral schemes known as Bitcoin Funding Team and My7Network. Using websites, YouTube videos, social media and conference calls, the defendants allegedly promised big rewards for a small payment of bitcoin or Litecoin."  The complaint continues to allege that, "the structure of the schemes ensured that few would benefit. In fact, the majority of participants would fail to recoup their initial investments." Read the FTC's press release here.

10th Circuit Court of Appeals Rejects TCPA Coverage for Dish Network

You may recall that in June of 2017, Dish Network was hit with a $280 million fine for Do-Not-Call list violations. Dish Network argued that its insurance carrier, ACE American Insurance Company (ACE), should have covered such "damages" under their general liability policy. Unfortunately, a Colorado District Court held that ACE had no duty to defend Dish Network, as the fine falls under the category of uninsurable  "penalties" and not "damages." On February 21st, the 10th Circuit of Appeals affirmed that decision. Read the full decision here. Contact a TCPA attorney if you are faced with a similar situation. Consider having a telemarketing lawyer perform a telemarketing audit of your call center business.