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.