Court Affirms Summary Judgment in Favor of Yahoo

In Dominguez v. Yahoo, the plaintiff sued Yahoo for allegedly sending him over 27,000 unsolicited text messages using an ATDS. The previous owner of Dominguez's phone number had opted in to receive the texts every time he or she received an email, which is why Dominguez continued to receive so many text messages even after the number was reassigned. However, the issue that brought forth the law suit was whether Yahoo was using an ATDS to send the messages. The court held that, "Ultimately, Dominguez cannot point to any evidence that creates a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers. On the contrary, the record indicates that the Email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user. There can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages. But those messages were sent precisely because the prior owner of Dominguez’s telephone number had affirmatively opted to receive them, not because of random number generation." Read the full ruling here. Consider hiring a telemarketing lawyer or TCPA lawyer to help you if you find yourself in a similar situation to Yahoo. Ensure full telemarketing compliance and understand the most important telemarketing rules.

13 Senators Write Letter to FCC Urging Strong TCPA Regulation

Thirteen U.S. Senators recently wrote a letter to FCC Commissioner Ajit Pai urging him to "ensure that key robocall protections under the Telephone Consumer Protection Act (TCPA) remain in effect." The letter also outlines the Senators' requests regarding the definition of ATDS, reassigned number protections, and revocation of consent. Read the letter here.

Independence Day Call Restrictions

Remember that telemarketing is not allowed in the following states on the 4th of July:

• Alabama 
• Louisiana 
• Mississippi 
• Rhode Island 
• Utah 

Learn more about telemarketing regulations, autodialer laws, robocall laws, and dnc regulations.

Australian Woman Allegedly Harassed by Lead Generators

It's always interesting to hear news about telemarketing regulations and issues in other countries. In Australia, a woman has allegedly been harassed by legal lead generators after she was injured and her son killed in an auto accident. The lead generators allegedly called her and said, "Have you had an accident in the past year? We can get you compensation." The woman claims that she continued to receive these calls even after telling them she already had representation for her injury claim. This practice, known as "Claim Farming," is generally banned in most Australian states. Read the full news story here. Call a telemarketing attorney today.

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.