Debt collectors seeking to collect debt owed to or guaranteed by the U.S. government are no longer exempt from the TCPA.

The Fourth Circuit court found that the 2015 amendment to the TCPA, exempting automated calls that relate to the collection of debts owed to or guaranteed by the federal government, violates the First Amendment. The Court was “unpersuaded by the Government’s compelling interest argument.  Again, the debt-collection exemption does not further the purpose of the automated call ban in a narrowly tailored fashion.  Congress implemented the ban in order to protect privacy interests.  See S. Rep. No. 102-178, at 1, 5 (1991) (explaining that purpose of TCPA is to protect “privacy interests”); see also Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (discussing congressional findings supporting TCPA prohibitions).  The debt-collection exemption, however, undercuts those privacy protections.  In fact, the exemption applies in a manner that runs counter to the privacy interests that Congress sought to safeguard.” For more information, you may read the courts opinion here. Learn more about telemarketing compliance, telemarketing rules, telemarketing regulations, telemarketing license requirements, and cell phone do not call laws.

Unified Data Services, LLC Challenges the FTC Opinion Letter Regarding Soundboard Technology.

Unified Data Services, LLC filed suit against the FTC on April 24, 2019, See Unified Data Services, LLC et. al. v. United States Federal Trade Commission, No. 2:19-CV-00698 (D. Nev. 2019). According to the Plaintiffs, “on November 16, 2016, the FTC Bureau of Consumer Protection. Division of Marketing Practices, issued a letter that, in practical effect, binds for the first time an entire sector of the telemarketing sales industry, including Plaintiffs, under the so-called “robocall” provision of the TSR.” UDS argues that “the 2016 Division Letter is invalid and unenforceable.” Further asserting that the FTC letter violates the First Amendment and the Notice-and-Comment Requirements of the Administrative Procedure Act (APA). Allen, Mitchell & Allen will follow the case closely as this case may determine the future of soundboard technology as well as the validity of the FTC opinion letters. The filed Complaint may be obtained here.
Learn more about avatar telemarketing compliance here. Contact a telemarketing lawyer, telemarketing attorney, or TCPA expert if you need help understanding any topics discussed in this post. Robocall laws, autodialer laws, and do-not-call regulations are other topics that you should be sure to understand. 

FTC Alleges the operators of ClixSense and i-Dressup.com failed to secure consumers personal information.

The operators of online rewards website ClixSense have settled with the FTC regarding allegations that the website had insufficient security, while claiming it “utilizes the latest security and encryption techniques to ensure the security of your account information.”.  ClixSense collects personal information from users, including consumers’ names, dates of birth, answers to security questions, login and password credentials, and Social Security numbers. The FTC alleges that because the business, “failed to implement minimal data security measures” the personal information of 6.6 million consumers, including some 500,000 U.S. consumers were accessed by hackers.

The FTC Refunds Consumers Who Purchased Work-At-Home Opportunities From Bob Robinson, LLC

The Federal Trade Commission just issued refund checks to more than 87,000 customers. The FTC stated that the refunds stem from an FTC settlement in which the defendants used online “native” advertising—promotional content that resembles the non-advertising material beside it—to reach consumers who were researching work-at-home opportunities on the internet. The defendants routinely claimed people could earn, “hundreds of dollars per hour from home, without any special skills or experience.” The FTC alleged the defendants failed to make certain required disclosures to help consumers evaluate the business opportunity and made false and unsubstantiated earnings claims. For more information, read the FTC Press Release here.  Review your scripts and products with your legal counsel to ensure you are not selling (or are properly selling) a regulated business opportunity.
Learn about telemarketing licenses and telemarketing bond requirements. 

Universal Pictures, Legendary Pictures and Handstack settle TCPA Class Action

The Defendants have admitted no fault, but have agreed to settle TCPA-based auto texting and DNC lawsuit for $19.2 million dollars.  The case also involved curfew (calling time) allegations. Although not final, the proposed settlement provides that, “the maximum settlement award for members of the ATDS class will be $35.00, while the maximum settlement award for members of the Internal-Do-Not-Call, National Do-Not-Call, and Out of Time Classes will be $50.00.” For more information, read the settlement proposal here.  Ensure you have well-documented consent before auto texting or calling numbers on the DNC list.
Learn more about TCPA compliance, telemarketing laws, robocall laws, autodialer laws, cell phone do-not-call laws, and do-not-call compliance. All of these things can help you avoid telemarketing lawsuits.

Marketer of Water Filtration Systems to Pay $110,000 Civil Penalty
According to the FTC, a Georgia-based distributor of water filtration systems has agreed to pay a $110,000 civil penalty to settle charges that it violated a 2017 Federal Trade Commission administrative order by making false claims that wholly imported Chinese water filtration systems were made in the United States. As part of the settlement, the defendants have admitted that in March 2018, iSpring Water Systems, LLC, along with company owner and officer Zhuangyong Chen and company vice president Pearl Cai, began making false claims that the water filtration systems it sells are “designed and crafted in USA,” among other claims. For more, see the FTC Press Release here.
Contact a telemarketing lawyer, TCPA attorney, or telemarketing law firm if you need help understanding anything in this post.

Second Court Holds that Ringless Voicemail Messages are Subject to TCPA

In 2018, a Michigan Judge ruled that ringless voicemail messages were just like any other prerecorded voice message under the TCPA. Last week, a second Judge in the Southern District of Florida made a similar ruling, which can be read here. As stated in the Judge's order, "A construction of the TCPA in which a 'ringless' voicemail is a 'call' is consistent with Congress’s purpose in enacting the TCPA." Users of ringless voicemail messages should understand that rulings like this increase the risk of facing fines and lawsuits going forward. The safest route is to use them just like any other prerecorded message and only send them when you have the proper consent to do so. Learn more about telemarketing compliance, telemarketing regulations, telemarketing rules, robocall laws, autodialer laws, telemarketing license requirements, and do-not-call regulations.

Court Finds that Text Broadcaster May Be Liable Under TCPA

In Bauman v. Saxe, the plaintiff filed a lawsuit against theater company Saxe and cloud based communications company Twilio. Allegedly, Saxe and Twilio worked together to coordinate the timing and content of a text message campaign promoting Saxe. Twilio filed a motion to dismiss, arguing that they were merely transmitters of the messages and therefore faced no liability as they were in no way marketing their own services. The Judge in the case denied Twilio's motion to dismiss, holding that, "Twilio’s alleged involvement was to an extent that Twilio could be considered to have initiated the contact, considering the TCPA’s goal of limiting the nuisance and invasion of privacy caused by automated calls and text messages. Plaintiffs also allege that Twilio not only knowingly allowed DSP to use their platform for automated text messages but actively helped DSP bypass spam filters. Because the FCC has determined that transmitters can be liable under the TCPA under certain circumstances, and because Plaintiffs allege circumstances under which liability is plausible, Plaintiffs state a claim against Twilio under the TCPA." Read the Judge's order in this case here.

Jenny Craig Agrees to $3 Million TCPA Settlement

Popular weight-loss brand Jenny Craig has agreed to pay out $3 million to settle a TCPA class action settlement. According to the complaint, which can be read here, Jenny Craig sent unsolicited marketing text messages to consumers using an ATDS. One of the sample text messages sent by Jenny Craig in the complaint said, "Hi Zoey, It's Liz @ Jenny Craig again. Don't want you to miss our best offer ever! Free 1 yr prog. + $17 off wkly menu for 12 wks. Interested?" You'll notice that the text messages failed to include opt-out language as well. If you are using text messages to market your products or services, ensure that you (1) only text phone numbers for which you have the proper consent, and (2) always include opt-out instructions in the messages. Consumers are more likely to complain or file lawsuits if there is no way to conveniently opt-out of your messages. Contact a TCPA defense attorney if you need help understanding cell phone do-not-call laws or telemarketing compliance. Also consider working with a telemarketing lawyer or TCPA lawyer.

Office Depot and Tech Support Firm Will Pay $35 Million to Settle FTC Allegations

Office Depot and a partnering tech support company will pay $35 million dollars to settle FTC allegations that the companies, "tricked customers into buying millions of dollars’ worth of computer repair and technical services by deceptively claiming their software had found malware symptoms on the customers’ computers." Office Depot will pay $25 million, and the tech support company will pay $10 million. Even if you know your company isn't generating very many consumer complaints at this time, you should always keep an eye out for any complaint that escalates to the point where it may reach the ears of state or federal regulators. Read the FTC's press release about this settlement here.

Texas Introduces Data Privacy Legislation

Texas is the latest state to introduce very strict data privacy legislation. This comes just weeks after the State of Washington passed what is likely the strictest state data privacy law to date. Two bills have been introduced in the Texas House of Representatives. The first bill, the Texas Consumer Privacy Act, would give consumers the right to request that companies delete their personal information, opt out of the sale of their information, and request access to see what data exactly a business has. Read the full text here. The second bill, the Texas Privacy Protection Act, focuses primarily on electronic data. Businesses would be required to develop data security programs and delete electronic data of a consumer within 30 days of account closure. Read the full text here. With three states now having introduced or enacted strict data privacy laws (CA, WA, & TX), businesses should anticipate that more states will follow suit.
Telemarketing companies, in addition to understanding privacy laws, should be sure to understand telemarketing compliance regulations, robocall laws, autodialer laws, telemarketing license requirements, telemarketing rules, and telemarketing bond requirements.

FTC and FDA Send Warning Letter to CBD Companies 

The FTC and FDA have send a joint letter to several companies warning them against advertising and selling products containing cannabidiol (CBD) and claiming that they can treat Alzheimer’s, cancer, and other diseases. According to the FTC's press release, "The joint FTC and FDA letters warn the companies about the potential legal consequences of making unsupported health and efficacy claims in advertising, and strongly urge them to review all product claims they are making to ensure they are supported by competent and reliable scientific evidence. The letters instruct the companies to notify the FTC within 15 days of receipt of the letter of the specific action taken to address the agency’s concerns." If your company markets CBD oil or any similar products, be sure you don't make any claims that could lead to FTC warnings such as this.

FTC Cracks Down on Operations Accused of Generating Billions of Robocalls

Recently the FTC settled with four different businesses accused of making billions of unwanted robocalls to consumers in the United States. The robocalls promoted auto warranties, debt relief services, home security systems, charities, and SEO services. According to the FTC's press release, "The settlements are part of the agency’s ongoing efforts to combat the scourge of illegal robocalls. Under the court orders announced today, the defendants are banned from robocalling and most telemarketing activities, including those using an automatic dialer, and will pay significant financial judgments. The defendant in one of these cases provided the software platform that resulted in more than one billion illegal robocalls." Using prerecorded messages to market your products can be a very efficient strategy, but be sure that you do it in a compliant way that will reduce consumer complaints. Click here to read more about each of the four settlements.
Do you need help understanding any of this information? Contact a telemarketing compliance lawyer or TCPA attorney. Telemarketing law firms can help significantly in your quest for full telemarketing compliance.

AI Robocalls Increasing in China

It is always interesting to look at news from other countries that provides insight into telemarketing technologies and trends around the globe. A recent article highlights the increase in the usage of artificial intelligence to make telemarketing calls in China. One company that produces "bots" to make these calls expresses high levels of confidence that their technology can out-perform human phone agents. "The company’s official website also characterizes [humans] as irrational, emotionally unstable, and prone to making mistakes that could cause sales companies to lose customers. A bot, on the other hand, doesn’t need training, never complains about the work, and carries out its job efficiently and dispassionately."

While many Chinese lawyers are arguing that this technology violates the country's privacy laws, that hasn't stopped the technology from increasing drastically over the last few years. If this technology ever starts to be used frequently to make calls into the United States, it would be interesting to see how regulators would react. Regulators have traditionally frowned upon technologies that are designed to increase calling efficiency and effectiveness, such as Avatar and more recently Ringless Voicemail Drops. Until there is a real change in the law regarding the definition of pre-recorded messages, you will want to be very careful using any such Artificial Intelligence for marketing or other purposes without first having express written consent. Contact us if you are interested in using similar technology. Learn more about robocall laws, telemarketing compliance, autodialer laws, avatar telemarketing laws, and cell phone do not call laws. 

FCC Reporting Modernization Act

Senator Jerry Moran (R-Kan.) has introduced the FCC Reporting Modernization Act to Congress. This Bill has implications regarding the TCPA because it would, "Update current [FCC] reporting requirements to include all Telephone Consumer Protection Act complaints and enforcement actions regarding robocalls and spoofed phone calls. These updated reports to Congress would provide a clearer analysis of the robocall and spoofing problem and identify patterns of these harmful practices impacting consumers." While this bill wouldn't directly impose any new rules on businesses, it would require increased communication between the FCC and Congress, which could lead to changes in the TCPA in the long run. Read more here. Contact a telemarketing lawyer or TCPA attorney if you need to ensure you are in full telemarketing compliance by performing a telemarketing compliance audit. 

FCC Seeks Comments on Definition of "Sender" as it Relates to Faxes

The FCC is seeking comments on a petition that was recently filed with the agency regarding the definition of the "Sender" of a fax. Specifically, the request for comments states, "With this Public Notice, we seek comment on a petition for expedited clarification or declaratory ruling filed by Akin Gump Strauss & Feld LLP (Akin Gump). Akin Gump asks the Federal Communications Commission to clarify the definition of 'sender' under the facsimile advertising provisions of the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, Akin Gump requests that the Commission clarify that 'a fax broadcaster is the sole liable ‘sender,’ when it both commits TCPA violations and engages in deception or fraud against the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser cannot control the fax campaign or prevent TCPA violations.'" Comments are due April 8th. You may want to consider commenting on this petition if your business uses faxes as an advertising tool.

FCC Rule Requiring Opt-Out Messages on Solicited Faxes Officially Ends

In a win for the industry, the FCC has eliminated a rule requiring opt-out messages on solicited fax messages. Now, if a business wants to send a marketing fax to someone who has consented to receive it, no opt-out language is necessary on the message. This change was announced several weeks ago but just became effective this week. Read more here. Learn more about telemarketing rules and telemarketing regulations, such as telemarketing license requirements and telemarketing bond requirements.

Late Night Host John Oliver Criticizes Lack of Action on Robocalls

In a recent late night television segment, popular host John Oliver criticized the FCC for failing to prevent illegal robocalls. While there is some humor in the segment, Oliver's arguments about robocalls really missed the mark. Oliver claims that the leading robocallers in the U.S. are large, nationwide businesses like Wells Fargo. While companies like this do use prerecorded voice messages, many of those calls are made to legitimately communicate with their customers. Oliver fails to grasp the real issue at hand, which is that illegal robocalls made without consent are what really generate the complaints. Those who are in touch with the industry understand the dilemma that the FCC is facing. How can the agency reduce illegal robocalls while still allowing legitimate businesses to communicate with their customers? Oliver's tone indicates that he thinks all prerecorded voice messages in every context should be banned, which would obviously be a lose-lose for both businesses and the consumers who rely on those types of efficient communication. It's unfortunate to see someone with such a large following fail to do the proper research before publicly speaking out on the issue. Click here to watch the full segment. This segment could have been much more informative if Oliver had done his research regarding robocall laws, telemarketing compliance, autodialer laws, telemarketing license requirements, and do not call laws.

Washington State Senate Passes Privacy Regulation Mirroring GDPR

The Washington State Senate has passed a new, strict data protection bill. The bill passed by a vote of 46-1, and now the bill will move to the State's House of Representatives for their consideration. The text of this bill is very similar to the European Union’s GDPR that took effect last year. Under this bill, Washington residents would have the right to contact any company that has their personal data on record and access the data in electronic format, have the data deleted or corrected, and opt-out of having any future personal data stored by that company. This will most likely become one of the strictest data privacy regulations in the United States. Other states will likely pass similar bills in the near future, so be sure that your data privacy practices are safe and compliant. Read the full text of the bill here.

Facebook Challenges Constitutionality of TCPA

In Duguid v. Facebook Inc., social media giant Facebook is currently involved in a TCPA lawsuit over allegations that the company sent unsolicited "Happy Birthday" text messages to users. The plaintiffs in the case are arguing that those text messages were marketing in nature and that Facebook did not have consent to send them, therefore violating the TCPA. As part of its defense, Facebook is hoping that the U.S. Court of Appeals for the Ninth Circuit will find that the TCPA is unconstitutional, as it violates the first amendment in restricting calls on the basis of content. Read more about this story here. While a ruling like this would be great for the industry, it is unlikely that the court would rule that the TCPA violates the first amendment. This argument has been made many times in courts all over the country without any success.
If you are unsure about your business's telemarketing compliance practices, be sure to consult with a telemarketing lawyer, telemarketing law firm, or telemarketing attorney.

NHL Team Facing TCPA Lawsuit

The NHL's Tampa Bay Lightning are facing a TCPA lawsuit over alleged texting violations. According to the complaint, the team used, "['bait and switch'] tactics to convince fans to sign up to enter into prize sweepstakes or otherwise to receive purely informational texts. Once Defendant obtains access to its fans’ cellular telephone numbers, however, Defendant enrolled the consumer into its text message marketing campaign which floods the recipient with nearly daily advertising and telemarketing text messages." Read a copy of the complaint here. If your business sends marketing text messages to consumers, ensure that you have the right levels of consent in order to mitigate the risk of facing litigation like this. Learn how to defend a TCPA lawsuit. However, mitigate your risk of telemarketing lawsuit defense or telemarketing fines by following all telemarketing rules. Make sure you have the proper telemarketing licenses and telemarketing bonds. Contact a telemarketing law firm to determine which telemarketing regulations you need to follow.

All 50 Attorneys General Announce Support of TRACED Act

A letter was sent to the U.S. Senate Committee on Commerce, Science, & Transportation by all 50 state attorneys general announcing their support of the TRACED Act. Read the full letter here. As a reminder, the TRACED Act would do the following:

• Require that telephone service providers implement "an appropriate and effective call authentication framework in the internet protocol networks of voice service providers." 
• Require 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.
• Authorize 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. 

There is a good chance that this bill will pass. The bill does give the FCC more teeth to enforce telemarketing regulations, but it does not impose any new rules for telemarketing businesses. Businesses that are in full compliance with the TCPA have little need to worry about this.
Learn more about robocall laws and autodialer laws. Make sure you understand dnc compliance and cell phone telemarketing laws as well.

Operators of Alleged Sweepstakes Scam to Settle FTC Charges for $30 Million

A business that allegedly targeted senior citizens in a sweepstakes scam has agreed to pay the FTC a $30 million settlement. They have also been banned from participating in any future prize-promotion business. According the the FTC, the defendants, "tricked millions of people—many of them older adults—into paying money to collect prizes that never materialized." Read the FTC's press release here. Be especially cautious when marketing to senior citizens. You should strongly consider having unique policies in place to reduce complaints from seniors, as regulators will generally take them more seriously than others.

FCC Requests Comments on NorthStar Avatar Petition

Last month, NorthStar Alarm Services, LLC filed a petition with the FCC regarding soundboard technology, also known as avatar. Avatar technology functions by allowing a live caller to speak with a call recipient using prerecorded voice snippets. The FCC has sent out a request for comments on this petition. Comments are due on March 15th, and reply comments are due on March 29th. Read the FCC's full request for comments here.
Specifically, NorthStar asked the FCC to rule that: "1) The use of soundboard technology does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA; or, in the alternative, 2) The use of soundboard technology on a one-to-one basis, whereby the soundboard agent conducts only one call with one individual at a single time, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA."'

Business owners should consider commenting on this petition to encourage the FCC to provide a positive ruling for the industry. Learn more about avatar telemarketing compliance, telemarketing rules, telemarketing license requirements, and telemarketing compliance. Contact a telemarketing law firm or telemarketing attorney if you need help in any TCPA compliance matter. 

Data Privacy Legislation Introduced in Washington State

A comprehensive data privacy bill has been introduced in Washington State. The text of this bill is very similar to the European Union's GDPR that took effect last year. Under this bill, Washington residents would have the right to contact companies to access their personal data in electronic format, have their data deleted or corrected, and opt-out of having any future personal data stored with that company. If this bill passes, it would be one of the strictest data privacy regulations in the United States. Read the full text of the bill here. If your business stores consumers' personal data, be sure to follow the status of this bill and adjust any of your policies accordingly. This bill represents a trend nationwide and you should make sure to be aware of the individual requirements in each state where you store data.

FTC Brings First Case Challenging Fake Paid Reviews

The FTC has filed a complaint against a retail website for allegedly paying third parties to post false and misleading reviews on Amazon. According to the FTC's press release, "The defendants paid a website, amazonverifiedreviews.com, to create and post Amazon reviews of their product. The FTC contends that Jacobowitz told the website’s operator that his product needed to have an average rating of 4.3 out of 5 stars in order to have sales and to, 'Please make my product … stay a five star.'" If a business uses paid reviews or testimonials to promote their products, they must make clear and conspicuous disclosures that the reviewer was compensated.
If you have any questions about robocall laws, autodialer laws, telemarketing bonds requitements, or cell phone telemarketing regulations, don't hesitate to contact a telemarketing lawyer.

FCC Releases NPRM Regarding Spoofing and Oversees Calls

The FCC has release a notice of proposed rule making (NPRM) regarding spoofed numbers and callers from outside the United States. Specifically, this NPRM proposes three key actions:

• First, the agency proposes to, "Extend the reach of our caller ID spoofing rules to include communications originating from outside the United States."
• Second, the agency proposes, "to amend our rules to incorporate the phrase 'in connection with any voice service or text messaging service' into the prohibition on causing 'any caller identification service to transmit or display misleading or inaccurate caller identification information.'"
• Third, to adopt definitions of the terms "Text Message," "Text Messaging Service," and "Voice Service." 

Comments are due in mid-March. Read the full NRPM here, which includes instructions for submitting comments. Whether you make calls using domestic or overseas agents, you should ensure that you only push out caller-ID numbers that you legitimately own. Doing so should keep you safe from whatever this FCC rule-making action leads to. Learn more about telemarketing rules, telemarketing compliance, robocall laws, and telemarketing regulations. Contact a telemarketing attorney if you need help understanding any of this telemarketing law firm related content.

FCC Robocall Report

The FCC has released a 15-page report regarding robocall trends in the United States. The report addresses recent increases in both the volume of unwanted robocalls as well as consumer complaints. Current regulations enforced by the FTC and FCC are also outlined in the report. The conclusion of the report provides a good summary of what is addressed:

Chairman Pai has often referred to illegal robocalls as a “scourge,” and the Commission has devoted significant resources to fighting illegal calls. Available data show that robocalls remain a substantial consumer problem. And challenges remain, especially in implementation of Caller ID authentication and expanded call blocking. Further, the Commission faces hurdles enforcing against robocallers, including the need for cooperation from foreign governments to stop illegal robocalls that originate overseas, greater provider participation in traceback efforts, and a one year TCPA statute of limitations. Government and industry have taken strong action to stop the worst robocalls before they reach consumer phones, with stepped-up enforcement, call blocking, and Caller ID authentication.

While no new or groundbreaking announcements were made in this report, business owners who want to stay on top of the FCC's perspective on pre-recorded voice messages as a form of marketing will want to spend time reviewing the document, which can be accessed here. Remember that there is a one-year statute of limitations for FCC enforcement of the TCPA. Much more common, however, is private consumer enforcement through lawsuits. The statute of limitations for consumers to file lawsuits under the TCPA is four years. Read telemarketing related information on a telemarketing blog. Be sure to understand cell phone telemarketing laws and do-not-call regulations.

FTC Finds that No Changes are Needed to CAN-SPAM

Late last year, the FTC announced that it would be soliciting comments as part of a review of the CAN-SPAM Act to determine if the law was still relevant and effective or if it needed any changes. The CAN-SPAM Act, as you likely know, is a consumer protection law that aims to reduce unwanted emails. Last week, the agency announced its conclusion that no changes are needed. According to the report, "The comments overwhelmingly: (1) favor retention of the Rule and assert that there is a continuing need for the Rule; (2) conclude that the Rule benefits consumers; (3) assert that the Rule does not impose substantial economic burdens; and (4) conclude that the benefits outweigh the minimal costs the Rule imposes. The Commission has analyzed the proposed benefits to consumers of proposed changes to the Rule, including any evidence provided of those benefits, and balanced those proposed benefits against the cost of implementing the changes, the need for the change, and alternative means of providing these benefits for consumers, such as consumer education materials." Read the full report here. Contact a telemarketing lawyer if you need help understanding anything in this post.

Gym Wins TCPA Case Over Transactional Texts

In 2017, Miguel Suriano signed up for a gym membership at French Riviera Health Spa. He provided his phone number in his membership forms, thus providing implied consent which would allow the gym to send him non-marketing messages. Over the next few months, the gym sent Suriano several text messages congratulating him on his new membership, inviting him to sign up for upcoming fitness classes, and encouraging him to follow them on social media. Suriano filed a lawsuit against the gym over alleged violations of the TCPA for sending him these messages. The judge in the case held that these texts were informational in nature, not marketing, and therefore there was no violation of the law. The defendant's motion to dismiss was granted. While this ruling is a win for the industry, you should still exercise caution when sending informational messages or calls. Ensure that you have the right levels of consent before sending those messages. Learn more about cell phone telemarketing laws, telemarketing compliance, autodialer laws, robocall laws, and telemarketing licenses. Contact a telemarketing lawyer or TCPA attorney if you need help understanding how to comply with any telemarketing regulations.

Navient Settles TCPA Class Action for $2.5 Million

Student loan and collections business Navient was sued in a class action lawsuit in October 2017 over allegations that the company made calls to consumers' cell phones using an ATDS without the proper consent. Although Navient denies the allegations, they have chosen to settle the lawsuit rather than continue to face expenses related to legal defense. Read the approved settlement agreement here. Contact a TCPA attorney if you find yourself facing a TCPA lawsuit.

FTC to Issue Refunds to Victims of Alleged Robocall Scam

In 2015, the FTC won a $1.7 million judgment against two businesses that the agency alleges, "promised to lower people’s credit card interest rates and to save them thousands of dollars, in exchange for an upfront fee. After collecting the fee, they failed to provide the promised interest rate reductions or the savings. They also unlawfully called numbers listed on the national Do Not Call Registry and failed to identify who was responsible for placing the calls." This week, the FTC announced that they will be mailing over 1,200 checks averaging over $1,000 to consumers who were affected by the defendants. Read the FTC's press release here. Make sure you scrub your data against the Do Not Call Registry so that you can avoid FTC actions such as this one.

Social Media Influencers Subpoenaed in Frye Festival Fallout

In the Spring of 2017, a "Woodstock-type" event titled the "Frye Festival" was planned to attract wealthy millennials. The event turned out to be a huge disaster, as documented in the Netflix film, Fyre: The Greatest Party That Never Happened. Frye Festival organizers had promised attendees many luxurious amenities leading up to the event, such as high-class air travel and luxury hotel rooms. Turns out, the location of the festival changed at the last minute and guests who paid $12,000 to attend were fed simple cheese sandwiches instead of the fine dining they were promised. Numerous other issues arose at the festival, including flooding and looting. Needless to say, lawsuits were filed against festival organizers. As part of the litigation, popular social media influencers who promoted the festival, including Kendall Jenner, are being subpoenaed to find out information regarding the finances of the festival organizers. Read a copy of the lawsuit here and the subpoenas here. If you tell consumers you will do something or offer amenities of a certain quality or at a certain location, follow through and deliver what you promised, or face nasty litigation like this.  The top organizer also went to jail, so misrepresentations and consumer fraud are no joke.
Learn more about topics related to these news stories, such as telemarketing bonds, responding to an attorney general, and Do-Not-Call laws.

Cookware Company Settles With West Virginia AG for $320,000 Over Alleged Telemarketing Violations

The West Virginia Attorney General's office filed a lawsuit against cookware company NuWave, LLC, for allegedly violating the State's consumer protection law and telemarketing act. NuWave agreed to settle the lawsuit for over $300,000, most of which will be paid back to affected consumers. According to a local news story about this settlement, "neither NuWave nor its vendors were registered and bonded as telemarketers with the West Virginia Tax Department." NuWave also allegedly used deceptive "Buy one, get one free" pitches in the marketing calls to consumers. This should be a reminder to regularly compare your calling practices with state regulations in every state that you call into. Make sure you have the necessary telemarketing licenses and telemarketing bonds, and be sure that you are following any unique, local telemarketing rules. Consult with a TCPA Attorney if you need help responding to an Attorney General in a TCPA case.

Debt Collector Using Local Numbers Found Not To Be Deceiving 

Diversified Consultants, Inc., a debt collection company, pushed out numbers that were local to call recipients on their caller-IDs. A consumer sued Diversified Consultants, alleging that the practice was deceiving as the company had no local presence in the State of Pennsylvania where the calls were received. A Judge granted the defendant's motion to dismiss, citing section 1692e of the FDCPA.

"Section 1692e’s list of prohibited conduct generally characterizes three categories of harmful practice, to wit: misleading consumers about the debt collector’s identity, about the character of the debt itself, and about the consequences of a consumer’s decision about the debt...The use of a particular phone number, by a Defendant whose business location is covered by a different area code, is not materially misleading information or prohibited conduct under the FDCPA."

Read the court's full opinion here. This ruling is great news for debt collectors who may choose to make calls displaying local phone numbers, but non-debt collection callers should not get too excited about this. Caller-ID spoofing is still very much frowned upon under the TCPA. Businesses making marketing calls should only display phone numbers that they legitimately own. Telemarketers who make marketing calls should make sure they understand all telemarketing regulations, autodialer laws, robocall laws, cell phone telemarketing rules, and do-not-call regulations.

FTC Returns $6 Million To Consumers Affected by Alleged Deceptively Marketed Health Products 

The FTC filed a lawsuit against health product company Tarr, Inc. over allegations that the company, "used unsupported claims, fake magazine and news sites, bogus celebrity endorsements, and phony consumer testimonials to market their products." Soon, the FTC will be mailing out $6 million in refunds to consumers, averaging about $27.00 per person. Read the FTC's press release about this settlement and the corresponding refunds here. This FTC action, like most others, likely arose as a result of consumer complaints. Make reducing and resolving consumer complaints a top priority for your business.

U.S. Supreme Court Could Rule on ATDS Definition

One of the most significant court rulings during 2018 was in Marks v. Crunch, in which the Ninth Circuit found that any device with the capacity to store telephone numbers falls under the TCPA’s definition of ATDS, whether it can randomly or sequentially dial those numbers or not. After a series of appeals, Crunch has filed a petition for writ of certiorari with the Supreme Court, meaning that they have asked the Supreme Court to hear the case. This doesn't require the Court to actually take on the case, but after years of uncertainty over the definition of ATDS there is now a chance that the highest court in the U.S. might rule on the issue. Allen, Mitchell & Allen will keep you informed about the developments of this case. Learn more about the definition of ATDS, telemarketing compliance, robocall regulations, cell phone telemarketing laws, and TCPA regulations.

Florida Car Dealership Will Likely Face TCPA Class Action

A class action website is starting to gather information from consumers who may have been called without consent by a car dealership in Florida. While the exact details of this lawsuit are unclear, the website does have a brief description of Ringless Voicemail Messages (RVM) and states that more and more telemarketers are starting to use them. Remember that last year the State of Florida determined that RVMs would be treated just like any other prerecorded voice message as far as their state is concerned. As consumers and regulators become more aware of RVMs, it will become increasingly risky to use them to market your products or services. This is also a perfect example of the state of affairs in the TCPA world.  Firms are going to great lengths to identify and develop class actions against perceived TCPA violators. Plaintiff litigation is organized and active. Solid compliance is the safest defense. Contact a TCPA lawyer if you need help understanding how to defend a TCPA lawsuit. Consider performing telemarketing compliance audit of your telemarketing practices so you can make sure you are in compliance with telemarketing rules and telemarketing regulations.

Scrub While You Can!

During the recent Federal Government shutdown, the National Do-Not-Call list was inaccessible for businesses. The funding bill that was passed by congress could potentially only keep the government open until February 15, at which point businesses could lose access to the DNC list once again. Make sure you scrub your data against the DNC list over the couple of weeks to ensure that your calling data is as compliant as possible. Learn more about DNC regulations and cell phone do not call laws.

Ninth Circuit Court of Appeals Asks California Supreme Court to Weigh in on TCPA Case

Yahoo sued its insurance provider, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, because they refused to cover losses incurred over alleged violations of the TCPA. Yahoo argues that the insurance company had the duty to defend them from TCPA claims under their general liability insurance policy. National Union Fire Insurance refused the coverage, arguing that the policy did not apply to TCPA suits. A District Court sided with the insurer, but the Court of Appeals has determined that this is an unsettled issue and has asked the Supreme Court of California to weigh in on the question of whether an insurance provider has the duty to protect its clients against TCPA claims. Read more here and here. This is an important and interesting case to keep an eye on. It can be difficult for businesses to find insurance providers who are willing to cover them against TCPA claims, and this ruling could potentially open up more opportunities for coverage.  Learn more about telemarketing rules, telemarketing regulations, telemarketing law firms, and cellphone do-not-call laws.

Experian Settles Class Action Lawsuit with T-Mobile Customers

Many of you will recall that credit reporting agency Experian has been facing backlash in recent years as a result of a data breach that the company experienced between 2013 and 2015. Recently, Experian has agreed to settle a class action lawsuit that was filed by T-Mobile customers whose data was compromised during credit checks as part of the phone purchasing and financing process. Learn more about the lawsuit and the settlement here and here. Periodically review the data security of your business to ensure that you don't experience a costly data breach like this.

Travel App Granted Summary Judgment in TCPA Case

In Phan v. Agoda Co. Pte. Ltd. the Plaintiff alleged that the travel company Agoda violated the TCPA when they sent him a text message confirming his hotel reservation. The message also included an invitation to download Agoda's App. A Judge in the Northern District of California ruled that the text message was not marketing in nature, and therefore was not a violation of the TCPA. Instead, the message was transactional and informational in nature, which fell under the consent that the plaintiff had provided when he gave the company his phone number during the reservation process. Read the Judge's order granting Agoda's motion for summary judgment here. Business owners should ensure that they always have the proper consent when sending marketing or non-marketing text messages to consumers. Agoda's success in obtaining implied consent to send non-marketing text messages helped them come out with a win in this case. Contact a TCPA lawyer if you need help understanding telemarketing compliance, robocall laws, cell phone telemarketing laws, or autodialer compliance.

Petition Filed with FCC for Ruling on Soundboard Technology

NorthStar Alarm Services, LLC has filed a petition with the FCC asking for the agency to rule that soundboard technology, also known as avatar, does not constitute a prerecorded message under the TCPA. Soundboard technology functions by allowing a caller to communicate with a call recipient by using prerecorded voice snippets to carry on the conversation. Learn more about avatar telemarketing compliance.

Specifically, NorthStar is asking the FCC to rule that:

"1. The use of soundboard technology does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA; or, in the alternative,

2. The use of soundboard technology on a one-to-one basis, whereby the soundboard agent conducts only one call with one individual at a single time, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA."

Read the full petition here.

Things to Watch Out for in 2019

What should telemarketing business look out for to stay safe in 2019? We've put together this list of some of the most important things:

New FCC ATDS Interpretation

It's been over 9 months since the DC Circuit Court of Appeals ruled in ACA v. FCC that the FCC's interpretation of what constitutes an Automatic Telephone Dialing System was too harsh. After that decision during 2018, court decisions piled up on both sides of the aisle and it became clear that it would take time for the dust to settle. The FCC will most likely announce their new interpretation of ATDS, and how they will be enforcing that interpretation, during 2019. This is significant because it will heavily impact the actions of Courts as well as TCPA plaintiffs. The more relaxed the definition of ATDS in the eyes of the FCC, the easier it will be for businesses to defend themselves against lawsuits and regulatory action. 

FCC's Reassigned Number Database

Last month, the FCC announced that they will be creating a reassigned number database to help businesses ensure that they are not calling people whose numbers have recently been reassigned. While the exact logistical details of this database are not yet known, it will likely become available during 2019. Stay up-to-date on that database and strongly consider scrubbing your data against it once it becomes available.

Reducing Consumer Complaints

Consider making your 2019 New Year's Resolution to reduce and resolve all consumer complaints before they reach state and federal regulators. From year to year it has become increasingly apparent that regulators take action based on the consumer complaints they receive. During 2019, make an effort to calm angry call recipients by immediately removing them from your call data. It is also a best practice to give a refund to any customers who ask for one. Learn more about telemarketing compliance, autodialer laws, robocall laws, and telemarketing licenses. Contact a telemarketing lawyer or telemarketing law firm if you have any compliance questions.

Serial Litigator Industry to Grow

There are over 100,000 phone numbers that correspond to plaintiffs who have filed multiple TCPA lawsuits. During 2019, that number will likely keep on growing. There are vendors who will scrub these numbers from your calling data. Do a Google search for "TCPA Litigator Scrub" to explore your options.

What will Become of Ringless Voicemail?

During 2018, the State of Florida started treating ringless voicemails just like any other prerecorded voice message. A Judge in Michigan also ruled that ringless voicemails were no different than any other prerecorded telemarketing call. While this technology is still a grey area in most of the country and at the federal level, using RVMs will likely become an increasingly risky practice moving into 2019 and beyond. Contact a telemarketing attorney if you need help understanding any telemarketing rules.

Federal Court Denies Class Certification in “Wrong Number” Case

In Wilson v. Badcock Home Furniture, the plaintiff alleged that Badcock had called her approximately 30 times to attempt to collect on her delinquent account, even though she had told the phone representatives to stop calling her. Wilson sought to represent over 7,000 other call recipients that she alleged Badcock had called using an ATDS without consent. The court denied class certification, holding that, "Rather than engage in random robocalling, Defendant only calls numbers in its records and its intent was to call actual known customers in arrears…Actual customers almost certainly consented.  This means Defendant would likely have a possible defense against many class members, the precise contours of which could vary substantially.  The scope of this sort of inquiry is likely to dwarf the much simpler question of whether Defendant called a given class member with a prohibited system.  This is not a case where a defendant sprayed robocalls across a nonconsenting public." This is a good example of how only calling numbers with prior consent can protect your company from facing a dangerous class action. Read the court’s full opinion here. Find a TCPA Defense Lawyer, a telemarketing compliance attorney, and an expert in robocall laws, telemarketing rules, the definition of ATDS, and all other telemarketing compliance related issues.

Court Awards Over $20 Million in Attorneys Fees in Dish Network TCPA Case

As you may recall, Dish Networks paid a hefty price of $280 million to the FTC last year for alleged violations of the TCPA. This month, the Court awarded the plaintiffs attorneys over $20 Million for their work on private cases against Dish for similar alleged do-not-call violations. This should be a clear reminder to telemarketing businesses that there are both plaintiffs and attorneys who are looking to make a nice sum of money from your compliance mistakes.  Protect yourself by ensuring your practices are compliant with all state and federal telemarketing regulations. Call a telemarketing defense attorney if you find yourself facing a telemarketing lawsuit filed over issues related to do-not-call laws, cell phone telemarketing regulations, business to business telemarketing compliance, etc.

California Ends Plan to Tax Text Messages 

The State of California has backed away from a proposed cell phone texting tax that was designed to generate funds for 911 services and phone plans for lower income residents. A Tweet sent out by the California Public Utilities Commission explained the decision: "On December, 12, 2018, the Federal Communications Commission (FCC) issued a declaratory ruling finding that 'text messaging' is an information service, not a telecommunications service, under the Federal Telecommunications Act, which limits state authority over information services. Prior to this FCC ruling, text messaging was not a classified service under federal law. Under California law, telecommunications services are subject to the collection of surcharges to support a number of CPUC public programs that subsidize the cost of service for rural Californians and for low income, disadvantaged communities, and provides special services for the deaf, the hard of hearing, and the disabled. In light of the FCC's action, assigned Commissioner Carla J. Peterman has withdrawn from the CPUC's Jan. 10, 2019 Voting Meeting agenda the draft decision in Docket R. 17-06-023, which proposed to clarify that text messaging service should be subject to the statutory surcharge requirement." Learn about telemarketing to cell phones, autodialer laws, and avatar telemarketing laws.
Consider having a TCPA lawyer perform a telemarketing compliance audit of your business if any of theses stories concern you.