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.