Late Night Host John Oliver Criticizes Lack of Action on Robocalls

In a recent late night television segment, popular host John Oliver criticized the FCC for failing to prevent illegal robocalls. While there is some humor in the segment, Oliver's arguments about robocalls really missed the mark. Oliver claims that the leading robocallers in the U.S. are large, nationwide businesses like Wells Fargo. While companies like this do use prerecorded voice messages, many of those calls are made to legitimately communicate with their customers. Oliver fails to grasp the real issue at hand, which is that illegal robocalls made without consent are what really generate the complaints. Those who are in touch with the industry understand the dilemma that the FCC is facing. How can the agency reduce illegal robocalls while still allowing legitimate businesses to communicate with their customers? Oliver's tone indicates that he thinks all prerecorded voice messages in every context should be banned, which would obviously be a lose-lose for both businesses and the consumers who rely on those types of efficient communication. It's unfortunate to see someone with such a large following fail to do the proper research before publicly speaking out on the issue. Click here to watch the full segment. This segment could have been much more informative if Oliver had done his research regarding robocall laws, telemarketing compliance, autodialer laws, telemarketing license requirements, and do not call laws.

Washington State Senate Passes Privacy Regulation Mirroring GDPR

The Washington State Senate has passed a new, strict data protection bill. The bill passed by a vote of 46-1, and now the bill will move to the State's House of Representatives for their consideration. The text of this bill is very similar to the European Union’s GDPR that took effect last year. Under this bill, Washington residents would have the right to contact any company that has their personal data on record and access the data in electronic format, have the data deleted or corrected, and opt-out of having any future personal data stored by that company. This will most likely become one of the strictest data privacy regulations in the United States. Other states will likely pass similar bills in the near future, so be sure that your data privacy practices are safe and compliant. Read the full text of the bill here.

Facebook Challenges Constitutionality of TCPA

In Duguid v. Facebook Inc., social media giant Facebook is currently involved in a TCPA lawsuit over allegations that the company sent unsolicited "Happy Birthday" text messages to users. The plaintiffs in the case are arguing that those text messages were marketing in nature and that Facebook did not have consent to send them, therefore violating the TCPA. As part of its defense, Facebook is hoping that the U.S. Court of Appeals for the Ninth Circuit will find that the TCPA is unconstitutional, as it violates the first amendment in restricting calls on the basis of content. Read more about this story here. While a ruling like this would be great for the industry, it is unlikely that the court would rule that the TCPA violates the first amendment. This argument has been made many times in courts all over the country without any success.
If you are unsure about your business's telemarketing compliance practices, be sure to consult with a telemarketing lawyer, telemarketing law firm, or telemarketing attorney.

NHL Team Facing TCPA Lawsuit

The NHL's Tampa Bay Lightning are facing a TCPA lawsuit over alleged texting violations. According to the complaint, the team used, "['bait and switch'] tactics to convince fans to sign up to enter into prize sweepstakes or otherwise to receive purely informational texts. Once Defendant obtains access to its fans’ cellular telephone numbers, however, Defendant enrolled the consumer into its text message marketing campaign which floods the recipient with nearly daily advertising and telemarketing text messages." Read a copy of the complaint here. If your business sends marketing text messages to consumers, ensure that you have the right levels of consent in order to mitigate the risk of facing litigation like this. Learn how to defend a TCPA lawsuit. However, mitigate your risk of telemarketing lawsuit defense or telemarketing fines by following all telemarketing rules. Make sure you have the proper telemarketing licenses and telemarketing bonds. Contact a telemarketing law firm to determine which telemarketing regulations you need to follow.

All 50 Attorneys General Announce Support of TRACED Act

A letter was sent to the U.S. Senate Committee on Commerce, Science, & Transportation by all 50 state attorneys general announcing their support of the TRACED Act. Read the full letter here. As a reminder, the TRACED Act would do the following:

• Require that telephone service providers implement "an appropriate and effective call authentication framework in the internet protocol networks of voice service providers." 
• Require the FCC to initiate a rule-making initiative to help protect a subscriber from receiving "unwanted calls or texts messages from a caller using an unauthenticated number."
• Creates an inter-agency working group to study government prosecution of telemarketing violations. The group would include representatives from the Department of Justice, Department of Commerce, Department of State, Department of Homeland Security, FCC, FTC, and CFPB.
• Authorize the FCC to impose a fine of up to $10,000 against businesses or individuals that violate the TRACED Act. The FCC already has authority under the TCPA to impose fines of up to $16,000, so this new authority would be giving the agency a second umbrella under which they could impose fines. 

There is a good chance that this bill will pass. The bill does give the FCC more teeth to enforce telemarketing regulations, but it does not impose any new rules for telemarketing businesses. Businesses that are in full compliance with the TCPA have little need to worry about this.
Learn more about robocall laws and autodialer laws. Make sure you understand dnc compliance and cell phone telemarketing laws as well.

Operators of Alleged Sweepstakes Scam to Settle FTC Charges for $30 Million

A business that allegedly targeted senior citizens in a sweepstakes scam has agreed to pay the FTC a $30 million settlement. They have also been banned from participating in any future prize-promotion business. According the the FTC, the defendants, "tricked millions of people—many of them older adults—into paying money to collect prizes that never materialized." Read the FTC's press release here. Be especially cautious when marketing to senior citizens. You should strongly consider having unique policies in place to reduce complaints from seniors, as regulators will generally take them more seriously than others.

FCC Requests Comments on NorthStar Avatar Petition

Last month, NorthStar Alarm Services, LLC filed a petition with the FCC regarding soundboard technology, also known as avatar. Avatar technology functions by allowing a live caller to speak with a call recipient using prerecorded voice snippets. The FCC has sent out a request for comments on this petition. Comments are due on March 15th, and reply comments are due on March 29th. Read the FCC's full request for comments here.
Specifically, NorthStar asked 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."'

Business owners should consider commenting on this petition to encourage the FCC to provide a positive ruling for the industry. Learn more about avatar telemarketing compliance, telemarketing rules, telemarketing license requirements, and telemarketing compliance. Contact a telemarketing law firm or telemarketing attorney if you need help in any TCPA compliance matter. 

Data Privacy Legislation Introduced in Washington State

A comprehensive data privacy bill has been introduced in Washington State. The text of this bill is very similar to the European Union's GDPR that took effect last year. Under this bill, Washington residents would have the right to contact companies to access their personal data in electronic format, have their data deleted or corrected, and opt-out of having any future personal data stored with that company. If this bill passes, it would be one of the strictest data privacy regulations in the United States. Read the full text of the bill here. If your business stores consumers' personal data, be sure to follow the status of this bill and adjust any of your policies accordingly. This bill represents a trend nationwide and you should make sure to be aware of the individual requirements in each state where you store data.

FTC Brings First Case Challenging Fake Paid Reviews

The FTC has filed a complaint against a retail website for allegedly paying third parties to post false and misleading reviews on Amazon. According to the FTC's press release, "The defendants paid a website, amazonverifiedreviews.com, to create and post Amazon reviews of their product. The FTC contends that Jacobowitz told the website’s operator that his product needed to have an average rating of 4.3 out of 5 stars in order to have sales and to, 'Please make my product … stay a five star.'" If a business uses paid reviews or testimonials to promote their products, they must make clear and conspicuous disclosures that the reviewer was compensated.
If you have any questions about robocall laws, autodialer laws, telemarketing bonds requitements, or cell phone telemarketing regulations, don't hesitate to contact a telemarketing lawyer.

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.