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.