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.