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.