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.