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.