Court Holds that Manual Clicking Platform is Not an ATDS

Yet another good click-to-call court decision this year: In Bria Maddox v. CBE Group, Inc., a judge has ruled that CBE's Manual Clicker Application is not an ATDS because it requires call-by-call human intervention. The judge has granted CBE's motion do dismiss the TCPA claim of the plaintiff. Read the full order here. Learn more about the definition of ATDS, telemarketing compliance, and telemarketing regulations.

TCPA Litigation Down Relative to 2017

WebRecon has released new data showing litigation statistics related to complaints under regulations like the TCPA and FDCPA. The number of TCPA cases filed between January and April 2018 is down by over 17% relative to the same period last year. Read WebRecon's full report here. It's too early to say if this is a result of the recent ACA v. FCC decision, but this is an interesting trend to keep an eye on over the upcoming months. Contact a TCPA lawyer or a telemarketing compliance lawyer if you find yourself involved in a TCPA lawsuit.

Student Loan Debt Relief Operation Settles FTC Charges

The FTC has reached a settlement with Strategic Student Solutions and Bloom Law Group for allegedly charging consumers illegal fees and making false promises to reduce their student loan debt. According to the FTC's press release, Strategic Student Solutions "preyed on consumers with student loan debt by falsely promising to reduce their debt or payments through enrollment in student loan forgiveness or other programs. The defendants also falsely promised to apply monthly payments to consumers’ student loans and to improve credit scores and histories in addition to making other false claims and charging unlawful advance fees." The allegations against Bloom Law Group are similar. Businesses should keep in mind that cases like this are almost always sparked by consumer complaints. To mitigate the risk of facing FTC action, a good starting point is to resolve consumer complaints as quickly as possible. Read the FTC's press release here. If you need compliance or defense help, contact a telemarketing compliance attorney.

Judge Rules Consent Cannot be Revoked Orally when Part of Written Contract

A Judge has granted the defendant's motion for summary judgment in Barton V. Credit One. Plaintiff Carlton Barton sued Credit One for violations of the TCPA after they called him several times to inquire about an outstanding balance owed on his credit card, which he had obtained through Credit One. Barton claimed that he opted out of the phone calls orally, but that Credit One continued to call him. The Judge held that because he had consented to receive such calls in his cardholder agreement, and that the cardholder agreement included instructions for opting out of those calls in writing, oral revocation of consent was insufficient. Read the complete opinion here. Learn about telemarketing consent and other telemarketing rules. Consider speaking with a telemarketing attorney to learn about telemarketing compliance topics like autodialer laws, cell phone telemarketing laws, do-not-call list compliance, etc.

FCC Finalizes $120 Million Fine Against Alleged Caller ID Spoofer

After first proposing the fine several months ago, the FCC has concluded its investigation into Adrian Abramovich's alleged caller ID spoofing operation. The FCC has fined Abramovich $120 million for "malicious spoofing that was part of his massive robocalling operation aimed at selling timeshares and other travel packages." Read the FCC's press release here.

Court of Appeals Rules in Favor of FTC in Avatar Technology Case

Many of you may recall that last year the FTC began treating calls using Avatar, or soundboard, technology the same as any other prerecorded robocall. The FTC published a Staff Advisory Letter announcing that change in November 2016 and officially implemented the new interpretation of the technology in May 2017. The Soundboard Association sued the FTC and then appealed after the US District Court ruled in favor of the FTC. On April 27th, the DC Court of Appeals held that "the letter was properly issued and didn’t violate the Administrative Procedure Act’s notice-and-comment requirements." This is a blow to those who were hoping that there would be decreased regulation over this technology, which relies on human intervention to carry on the calls using prerecorded voice snippets. Read the FTC's press release here. Learn more about avatar telemarketing compliance and other telemarketing regulations.

FCC Seeks Comments on TCPA with Eye Toward Reform

Last week, the FCC published a Public Notice seeking comments on a number of TPCA issues that have recently been causing ripples in the industry. Specifically, the FCC is looking for comments about the following: 1) What constitutes an “automatic telephone dialing system” (ATDS); 2) How to treat calls to reassigned wireless numbers under the TCPA; and 3) How may a called party revoke prior express consent to receive robocalls? There are reasons to be optimistic about this notice. The current leadership of the FCC has been vocal in their criticisms of previous interpretations of ATDS. This notice could very well be an important step towards having more business-friendly telemarketing regulations at the Federal level. Those who would like to see that outcome shouldn't miss this opportunity to comment and express their opinions to the leadership of the FCC. Comments are due by June 13, 2018. Click here for more details and comment instructions. To ensure full TCPA compliance, consider having a telemarketing attorney perform a telemarketing audit of your company. A telemarketing lawyer can help with do-not-call laws, telemarketing registrations, telemarketing licenses, avoiding telemarketing fines, telemarketing rules, and a variety of other telemarketing compliance services.

Courts Reach Conflicting Conclusions about Predictive Dialers in Recent TCPA Cases

The Public Notice mentioned in the previous section will hopefully be a significant step towards establishing some clarity in what has become a foggy TCPA compliance environment. An example of the lack of concreteness in the law was seen last week. Two separate judges, several thousand miles apart, issued contradictory rulings on May 14th about predictive dialers and the definition of an ATDS.

In Reyes v. BCA Financial Services, Inc., the Judge held that the predictive dialer used by the defendant was an ATDS under the FCC's 2003 order that defined an ATDS as "an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” The Judge held that this 2003 definition still applied, despite the recent DC District Court's decision in ACA Int'l vs. FCC, which basically threw the exact definition of an ATDS up in the air.

In Herrick v. GoDaddy.com LLC, however, the Judge held that ACA Int'l vs. FCC did do away with the 2003 order. Reliance on those orders or any subsequent court ruling is rejected because, "these courts were bound and guided by the now-defunct FCC interpretations regarding this function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”

While these contradictory rulings may cause some in the industry a headache, there is a glimmer of light on the horizon as the FCC certainly appears to be in the early stages of taking action to clear up this mess.
Contact a TCPA lawyer here. A TCPA Lawyer can you with a variety of telemarketing compliance topics like cell phone telemarketing laws, robocall laws, autodialer laws, etc.

New Director of FTC's Consumer Protection Unit Appointed

Andrew M. Smith has been confirmed as the new Director of the FTC's Consumer Protection Unit. He's leaving his position as a Partner at the law firm Covington & Burling to head the unit. Read the FTC's press release here.

Collections Firm Agrees to $5 Million Settlement for Allegedly Failing to Disclose Recorded Calls

Debt collection firm Medicredit, Inc. has agreed to a preliminary settlement of $5 million to settle a class action lawsuit that was filed over allegations that they failed to disclose to consumers that calls were being recorded. Many states have call recording and disclosure regulations. As a best practice, businesses should always disclose when calls are being recorded, regardless of which state the calls are being made into. Read a copy of the settlement agreement here. Learn more about telemarketing rules and telemarketing compliance.

New Jersey Judge Rules in Defendant's Favor in TCPA Consent Case

In Nicole Rando v. Edible Arrangements International, Inc., a New Jersey judge has granted the defendant's motion to dismiss. Plaintiff Nicole Rando filed the class action lawsuit after she allegedly received unsolicited text messages from Edible Arrangements. Rando claimed that she continued to receive several messages after she had opted-out. The wording that she used to opt-out included: (1) "Take my contact info off please." (2) "I want to confirm that I have been removed off your contacts." (3) "I asked to be removed from this service a few times. Stop the messages." and (4) "Again I want to stop this service thank you." The automated instructions provided by Edible Arrangements indicated that the proper way to opt-out was to simply say "stop," which Rando never did. The judge held that because Rando had never appropriately opted-out, Edible Arrangements could not be held liable for the unsolicited texts. Although this is a favorable ruling for the industry, businesses should honor all opt-out requests, even if the wording isn't exactly as instructed. Read a copy of the judge's decision here. Contact a TCPA lawyer or telemarketing attorney if you are ever facing a similar TCPA case.

Man Fighting $120 Million FCC Fine 

Last June, the FCC filed a complaint against a man who allegedly made over 96 million illegal robocalls to consumers. The agency claims that at least 80,000 of those calls included spoofed caller ID information, a violation of the Truth in Caller ID Act. The defendant, Adrian Abramovich, appeared before the senate last week and argued that he is “not the kingpin that is alleged.” Read a Newsweek article about this case here. Learn more about telemarketing fines here.

Nevada Federal Court Rules that CBE Group's Product is not ATDS

A Nevada Federal Court has ruled in favor of the defendant in Marshall v. The CBE Group, Inc. The plaintiff in the case filed a TCPA lawsuit alleging that The CBE Group (CBE) had called her using an ATDS. Citing the recent ACA v. FCC decision and stating that it would apply a strict definition of ATDS, the court held that CBE's, "communications infrastructure does not constitute an ATDS." The plaintiff failed to show that CBE's system could make calls without call-by-call human intervention. Read the decision here. Learn more about the definition of ATDS here.

Recent State Law Changes

Three state laws have been passed that will affect telemarketers doing business in certain states: 1) In Florida, "Voicemail Transmissions" will now be viewed the same as "Telephonic Sales Calls" under the state's telemarketing act. A “Voicemail Transmission” will be defined as "technologies that deliver a voice message directly to a voicemail application, service, or device." 2) Florida statute § 501.6175 requires telephone sellers to keep records of their calling information for two years after the date that the information first becomes part of their business records. Call logs, consent and request data, and scripts are all required to be saved for two years under this new statute. 3)  West Virginia has passed House Bill 4150, which "[Prohibits] telemarketing companies from transmitting misleading or inaccurate caller identification information." Make sure you understand all telemarketing regulations so that your business can have full telemarketing compliance. Consult with a telemarketing attorney if you'd like to have a telemarketing audit performed. A telemarketing lawyer can help you understand robocall laws, autodialer laws, cell phone telemarketing laws, etc.

Bill that will Regulate Sending Call Centers Overseas Slowly Gaining Momentum

A bill that will add extra steps and costs for companies that want to move their call centers overseas was introduced in congress last year. While the bill has a long way to go before it becomes law, it has slowly been gaining momentum. It now has 32 co-sponsors. The bill requires businesses with at least 50 call center employees to notify the Department of Labor at least 120 days before moving their call center out of the country. Failure to do so could result in fines up to $10,000 per day. Also included in this bill, businesses with call centers outside of the US must require their agents to disclose their physical location at the beginning of each call. Read a summary and the text of the bill here. Learn about additional telemarketing rules here.
 

FCC Publishes Second Further Notice of Proposed Rulemaking

After several weeks of anticipation, the FCC has officially published its Second Further Notice of Proposed Rulemaking regarding Advanced Methods to Target and Eliminate Unlawful Robocalls. As stated in the press release, "In this Second Further Notice of Proposed Rulemaking, as part of our multiple-front battle against unwanted calls, we propose and seek comment on ways to address the problem of unwanted calls to reassigned numbers. This problem subjects the recipient of the reassigned number to annoyance and wastes the time and effort of the caller while potentially subjecting the caller to liability." Read the press release, which includes instructions for commenting, here. Learn more about FCC Telemarketing Laws, new FCC Rules, and telemarketing regulations.
 

Florida Bill will Regulate Ringless Voicemail

The Governor of Florida has signed a bill that will regulate ringless voicemail by expanding the definition of a "telephonic sales call" to include "voicemail transmissions." As defined in the bill, "voicemail transmissions" are "technologies that deliver a voice message directly to a voicemail application, service, or device." Read the full text of the bill here. To learn more about ringless voicemail compliance, contact a telemarketing attorney who can perform a full telemarketing compliance audit of your business's telemarketing compliance. 

ACA Int'l v. FCC

Last Friday, March 16, the D.C. Circuit published its significant decision in ACA Int'l v. FCC regarding, among other things, what an autodialer (ATDS) is.  While the appeal involved 4 separate issues, the industry prevailed on 2 of the 4 - the more important 2 in our view: autodialers and reassigned numbers.  Before you get too excited, the D.C. Circuit did not invalidate the general prohibition on autodialing cells without consent.  Rather, it set aside the FCC's overly broad "capacity" ATDS definition.  The Court's primary argument was that under such a standard, every smartphone would be an autodialer because they could all potentially be used to download autodialing apps.  This was the same argument our industry made when the FCC order was published in July of 2015.  The Court agreed, stating this would create an "unreasonable and impermissible standard."  The rule remains, however, that you may not use an autodialer to call/text a cell phone without consent.  So nothing about this new decision expressly allows us to use a predictive dialer to cold call cells.  Individual courts will now need to look back at the statute and decide whether they believe the language covers predictive dialers or not - some will find in our favor and some will not.  It is very possible that the new leadership at the FCC will make further positive changes to ATDS standards, now that the D.C. Circuit has ruled. Companies will need their calling systems re-reviewed at this time to ensure they have no significant ATDS exposure, despite this ruling.  It will, no doubt, be easier going forward to establish that manual calling systems are not autodialers merely because they could potentially be upgraded to have ATDS capacity.  This is a very welcome legal development.  We will publish more on the other 3 issues involved in the appeal in the coming days: reassigned numbers, consent revocation, and the scope of the healthcare exemption.  There is not room to address all of these issues here, especially where other important legal updates need to be made today as well (below). This is a major breakthrough in the telemarketing industry. Schedule a consultation with a telemarketing attorney if you'd like to discuss it further. Learn more about telemarketing compliance, telemarketing regulations, ATDS definition, and autodialer laws.

Feature Films For Families Settles FTC Case Involving Alleged DNC Violations

In 2016, a federal jury found that three Utah-based companies had illegally called more than 117 million consumers to pitch movies - equating to a potential fine over 1 trillion dollars.  Last week, the defendants agreed to voluntarily settle the case (already had verdict but no judgment) against them. The final stipulated judgment imposes a $45.5 million civil penalty, of which the defendants will only be required to pay $487,735 unless they are found to have misrepresented their financial condition. This is a lot better than a trillion dollars, of course.  Read the FTC's press release here. Learn more about cell phone telemarketing laws and do-not-call regulations.

FTC Shuts Down Cryptocurrency Promoters

The FTC has obtained a court order shutting down a defendant for allegedly promoting deceptive money-making opportunities involving cryptocurrencies. The FTC's complaint alleges that the defendants, "promoted chain referral schemes known as Bitcoin Funding Team and My7Network. Using websites, YouTube videos, social media and conference calls, the defendants allegedly promised big rewards for a small payment of bitcoin or Litecoin."  The complaint continues to allege that, "the structure of the schemes ensured that few would benefit. In fact, the majority of participants would fail to recoup their initial investments." Read the FTC's press release here.

10th Circuit Court of Appeals Rejects TCPA Coverage for Dish Network

You may recall that in June of 2017, Dish Network was hit with a $280 million fine for Do-Not-Call list violations. Dish Network argued that its insurance carrier, ACE American Insurance Company (ACE), should have covered such "damages" under their general liability policy. Unfortunately, a Colorado District Court held that ACE had no duty to defend Dish Network, as the fine falls under the category of uninsurable  "penalties" and not "damages." On February 21st, the 10th Circuit of Appeals affirmed that decision. Read the full decision here. Contact a TCPA attorney if you are faced with a similar situation. Consider having a telemarketing lawyer perform a telemarketing audit of your call center business.