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.