Allen Legal's Feedback From Two Significant Recent Compliance Summits

Last week, representatives from the FTC visited Utah to present on consumer fraud and abuse in conjunction with the Utah Division of Consumer Protection.  The event was well-attended in Salt Lake City, but mostly by regulators and law enforcement.  Allen Legal staff were some of the only private compliance/defense attorneys present. The presentations were educational and reiterated that their investigations and enforcement remain complaint-based. Meaning, reducing or eliminating consumer complaints to regulatory agencies should be a top priority for marketers.  The online sale of nutraceuticals and telemarketing sales of home business opportunities both remain on the Division's short list of top complaints received.

Eric Allen from our firm also attended the PACE national compliance summit earlier this week in Washington DC, the presenters at which included both the FTC and FCC, among others.  Lois Greisman of the FTC emphasized that robocall enforcement will continue to be aggressive in 2019 and that companies cannot turn a blind eye to lead and call vendor violations.  Mark Stone of the FCC spoke about possible new forthcoming TCPA regulations, further redefining the definition of an ATDS and other important issues, especially in light of the recent decision in ACA Int'l which overturned their prior definitions. Contact a TCPA lawyer if you need help making sense of any of this information.


Learn more about telemarketing fines and robocall laws. If you need a telemarketing lawyer to help you with telemarketing compliance, call 801-930-1117.

Court Finds that Predictive Dialer is not an ATDS

Over the last few months, court rulings have been piling up on both sides of the aisle in the debate over what exactly constitutes an ATDS. Recently, and in stark contrast to the recent Marks v. Crunch Ninth Circuit decision, the court held in Fleming v. Associated Credit Servs. that a predictive dialer is not covered under the TCPA.

Below is an excerpt from the Judge's ruling:

"I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling it also necessarily set aside the parts of the previous 2003 and 2008 FCC Orders that ruled that a predictive dialer was impermissible under the TCPA. . . The TCPA explicitly defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Does a system that dials numbers from a list that was not randomly or sequentially generated when the list was created qualify as an ATDS? With only the statutory text to guide me, I am convinced that the answer is no."
Learn more about autodialer laws and the definition of ATDS.

Uber Reaches $148 Million Settlement with State AGs in Data Breach Case

Popular ride-sharing service Uber has agreed to a $148 million settlement with the Attorneys General from all 50 states and the District of Columbia. A November 2016 hack of Uber's systems left important driver data compromised. Uber didn't make the breach public until November 2017, which violated laws that many states have in place that require businesses to inform their customers and/or employees as soon as possible in the event of a data breach. Read more here. Businesses should ensure that they have a proper data beach response plan in place.

Christine S. Wilson Sworn in as New FTC Commissioner

President Trump has named former Delta executive Christine S. Wilson as a new FTC Commissioner after former Commissioner Maureen K. Ohlhausen announced her departure last week.  Read the FTC's press release here.

Recreational Equipment Seller Settles FTC Charges for False "Made in USA" Claims

Four New York businesses that sell hockey pucks and other recreational equipment have agreed to settle an FTC lawsuit filed over allegations that the companies advertised their goods as being "Made in USA," when in reality they were made overseas. As part of the settlement, the defendants have been banned from "making unqualified U.S.-origin claims for their products, unless they can show that the products’ final assembly or processing -- and all significant processing -- take place in the United States, and that all or virtually all ingredients or components of the product are made and sourced in the United States." Read the FTC's press release about the settlements here.

FTC Shuts Down Another Alleged Business Coaching Scheme

The FTC filed a lawsuit against defendant Sean Brown for allegedly helping operate a business coaching scheme. Among the specific allegations, the FTC claimed that Brown and his company Digital Altitude, "falsely promised to provide individualized coaching from successful marketers, who in fact were just salespeople selling costlier membership levels." The FTC also alleges that the defendant misrepresented how much money individuals could make through the program. Businesses operating in spaces that the FTC and State AGs might consider to be "BizOps" should ensure that they reduce and resolve consumer complaints as quickly as possible. As a best practice, always refund customers who ask for their money back. Read more about this case here. Make sure you understand telemarketing rules and telemarketing regulations so that you can ensure 100 percent telemarketing compliance. Contact a telemarketing law firm or TCPA attorney if you need help with things like autodialer compliance,  telemarketing registrations, or robocall laws.

Man Imprisoned in Italy for Writing False TripAdvisor Reviews

A man in Italy has been put in jail by Italy's Postal and Communications Police for allegedly offering to write fake, positive reviews for businesses on TripAdvisor.com. Read more here. In the U.S., it is illegal to pay individuals to write reviews or testimonials without disclosing that the reviewer was compensated for doing so. If you violate that law, you could be sued by the FTC or a State Attorney General. Learn how to respond to an Attorney General in a telemarketing case.

Does a Spouse's Opt-in Count?

In Rodriguez v. Premier Bankcard, the plaintiff filed a TCPA lawsuit after a financial company made unsolicited calls to her cell phone. While the plaintiff had never opted-in to receive the calls, it turns out that her husband had included her number as a valid way to contact him when he was signing up for financial services from the defendant. The husband was the subscriber to the number, although the plaintiff was the primary user of the line. The Court held that a subscriber may give consent for a phone number to be called, even if the subscriber is not the primary user of the line. Read the full opinion here. Learn more about telemarketing compliance. What telemarketing fines are there? Contact a TCPA lawyer if you are facing a telemarketing lawsuit.

FTC Shuts Down Debt Collection Business

In a settlement with the FTC, a Georgia debt collection business has been banned from operating in the debt collection industry. The FTC alleged that the defendants used false claims and threatening tactics to get people to pay debts. Additionally, they allegedly tried to collect on debts that had already been paid and illegally contacted consumer's employers and other third parties. Most FTC actions are a result of consumer complaints. Ensure that reducing and resolving consumer complaints is one of your business' top priorities. Read the FTC's press release about this case here. Make sure you consult with a TCPA attorney to understand different telemarketing rules so that you can avoid trouble like this.

FCC to Seek Comments Regarding Implementation of Kari's Law

The FCC has released a Notice of Proposed Rulemaking regarding Kari's Law, which was signed into law by the president. In 2013, Kari Hunt was murdered by her husband in a motel room. Their daughter tried to call 911 on the motel phone, but the phone line didn't' have the capacity to make an emergency call without a pre-dialed digit. Kari's law will make it a requirement for phone systems in complex buildings like hotels, hospitals, schools, etc. to have the ability to dial 911 without any prefixes.  The FCC has released the notice and asked for comments in order to get feedback on the best way to implement the law. Read the Notice of Proposed Rulemaking here. Make sure you understand all telemarketing regulations.

Judge Dismisses Meritless TCPA Suit

In Johansen v. National Gas & Electric, the Judge has dismissed the case because the plaintiff gave the indication to the defendant that he was an interested customer before filing a lawsuit for alleged TCPA violations. Below is a key section of the Judge's analysis:

A call is excluded from the definition of a “telephone solicitation” if it is placed “to any person with that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4). When an ETM representative proposed during the June 14 call that an enrollment specialist would call plaintiff, he responded, “Okay, great. Sounds good.” Doc. 36-4 at p. 3. In the calls which followed over the next several days, plaintiff never stated that he did not wish to receive any more calls. He kept agreeing to be called by an enrollment specialist and even attempted to call NG&E to complete the enrollment process when one of the calls got cut off.

Click here to read a copy of the Judge's opinion and order. Contact a TCPA attorney if you find yourself  in a situation like this. Learn more about cell phone telemarketing laws and do-not-call regulations.

Avaya Dialing System Held to be ATDS

In Heard v. Nationstar Mortgage LLC, the Court has held that the Avaya predictive dialer meets the definition of ATDS, even if the FCC's previous definitions of ATDS were overruled by the recent ACA v. FCC decision. The court zeroed in on the Avaya system's ability to "store" numbers, thus in part fitting the original statutory definition of an autodialer. Read the court's full opinion and order here. While this ruling is negative for the industry, there have been several positive rulings in recent months as well. The FCC will most likely be reevaluating its stance on autodialers in the upcoming months, as indicated in a recent letter from FCC Chairman Ajit Pai to several U.S. Senators. Although there have been court decisions on both sides of the issue, the upcoming FCC actions will be much more significant as the FCC is the agency charged with enforcing the TCPA and determining what an ATDS really is.  Learn more about the definition of ATDS, autodialer laws, robocall laws, and telemarketing compliance. Call a telemarketing lawyer if you have an urgent need that only a telemarketing law firm can help with.

FTC Publishes Tips on Spotting "Small Business Coaching Scams" 

Last week, the FTC published an article to help consumers spot alleged "Small Business Coaching Scams." Click here to read this article. Unfortunately, many legitimate businesses in the direct marketing industry are mistaken for business coaching scams. Make sure you understand what red flags consumers might see to come to this conclusion. For example, as stated in the FTC's article, "Some scammers sell bogus business coaching and internet promotion services. Using fake testimonials, videos, seminar presentations, and telemarketing calls, the scammers falsely promise amazing results and exclusive market research for people who pay their fees. They also may lure you in with low initial costs, only to ask for thousands of dollars later. In reality, the scammers leave budding entrepreneurs without the help they sought and with thousands of dollars of debt." To prevent consumers from reaching those conclusions about your business, make sure you only use real testimonials, only promise real results, and be honest about what costs are associated with your services. Reducing and resolving consumer complaints should be a priority for any direct marketing business. Learn how to respond to an Attorney General.

Michigan Court Finds that Dialers Calling from a List Do Not Automatically Qualify as ATDS

An opinion out of the Eastern District of Michigan has found that a dialer calling from a list does not automatically qualify as an ATDS under the TCPA unless it generates the dialed numbers sequentially or randomly. The court based this decision in part on the recent ACA v. FCC decision, which set aside the FCC's overly broad definition of ATDS. Read the full opinion here. Read more about the definition of ATDS, autodialer laws, robocall laws, telemarketing compliance, and cell phone telemarketing laws.

Cirque du Soleil Escapes TCPA Class Action

The popular entertainment company Cirque du Soleil has been fighting a TCPA class action lawsuit for alleged faxing violations since 2009. However, due to a recent Supreme Court decision that put an end to the tolling of the statute of limitations when class action lawsuits are pending, the case has now been dismissed. Read a detailed article about Cirque du Soleil's win here. If you are facing a TCPA class action lawsuit, contact a TCPA attorney or telemarketing lawyer.

Nevada Secretary of State Announces Office Relocation

Companies doing business in Nevada will want to take note of the Secretary of State's new address. The Nevada Secretary of State has announced that the office which handles commercial recordings, document preparation services, Nevada Lockbox, domestic partnerships, securities, and trademarks will be relocated. The office will now be in the City of North Las Vegas City Hall Building in North Las Vegas. The address is 2250 Las Vegas Boulevard North, North Las Vegas, NV 89030. Learn more about telemarketing licenses and telemarketing registrations.

Louisiana Increases Penalties for Violations of State's Caller-ID Spoofing Laws

Last week, Louisiana's new "Anti-Caller ID Spoofing Act" went into effect. The Act makes it illegal for a caller to "knowingly insert false information into a caller identification system with the intent to mislead, defraud, deceive, cause harm, or wrongfully obtain anything of value." The new law gives the Attorney General the authority to seek fines of up to $10,000 per violation. Additionally, consumers can now sue marketers under a new private right of action. While the amount that they can sue for isn't specified, the new law indicates that consumers can sue for, "injunctive relief, treble damages, court costs, and reasonable attorney fees." Read the text of the new law, indicating the exact changes from the old law, here. Learn about how to respond to an Attorney General. Learn more about telemarketing regulations. Consider consulting with a telemarketing attorney if you are worried that you aren't in full compliance with telemarketing laws.

Uber Facing TCPA Class Action

The popular ride sharing app Uber is facing a TCPA class action lawsuit after they allegedly send over 30 marketing text messages to a man after he opted out from receiving additional messages. The case is Shelton Bollinger v. Uber Technologies Inc. Bollinger alleges that the text messages were disruptive to his life as they were received early in the morning or late at night. Read more information about this case here. To avoid being sued in a lawsuit like this, make sure you are in compliance with all telemarketing rules. To avoid getting in trouble for telemarketing violations, be sure to understand autodialer laws, robocall laws, do not call regulations, and telemarketing license requirements. Telemarketing fines could await you if you don't practice full telemarketing compliance.

 

FTC Approves Revisions to Jewelry Guides

The FTC has approved significant revisions to its "Guide for the Jewelry, Precious Metals, and Pewter Industries." The goal of the revisions was to further prevent deception in jewelry marketing. A brief summary of the changes from the FTC's press release is as follows:

Using comments and information obtained during a June 2013 public roundtable, in January 2016, the agency proposed, and sought public comments on, revisions to the Guides regarding below-threshold alloys, precious metal content of products containing more than one precious metal, surface application of precious metals, lead-glass filled stones, “cultured” diamonds, treated pearls, varietals, and misuse of the word “gem.”

Based on the overall record, the Commission has approved revisions to help align the Jewelry Guides with Section 5 of the FTC Act by tying guidance to consumer expectations, and to address technological developments and related changes in industry practice, providing needed clarification and greater flexibility for businesses.

Specifically, the revisions address (1) surface application of precious metals, (2) alloys with precious metals in amounts below minimum thresholds, (3) products containing more than one precious metal, (4) composite gemstone products, (5) varietals, (6) “cultured” diamonds, (7) qualifying claims about man-made gemstone products, (8) pearl treatment disclosures, (9) use of the term “gem,” (10) misleading illustrations, (11) the definition of “diamond,” and (12) exemptions recognized in the assay for gold, silver, and platinum.

Read the full FTC press release here.

FTC Returns Money to Consumers Targeted by Alleged Debt Collection Scheme

Nearly 600 checks totaling over $184,000 will be sent to consumers who were allegedly deceived by defendant Delaware Solutions into paying phony debts. The defendants agreed to the financial settlement and they have been banned from the debt collection industry. Read the full press release about this issue here.

FTC and Several States Combat Alleged Fraudulent Charities

According to last week's FTC press release, "The Federal Trade Commission, along with law enforcement officials and charity regulators from 70 offices in every state, the District of Columbia, American Samoa, Guam and Puerto Rico, announced more than 100 actions and a consumer education initiative in 'Operation Donate with Honor,' a crackdown on fraudulent charities that con consumers by falsely promising their donations will help veterans and servicemembers." Make sure you understand telemarketing rules so that you can avoid trouble like this. Learn more about charitable telemarketing laws.

TCPA Litigation Down in June

Litigation under the TCPA, FDCPA, and FCRA was down in the month of June. Overall during 2018, TCPA litigation is down almost 20% from 2017. Read more statistics in WebRecon's most recent report. Watch our short video about responding to a TCPA lawsuit. Contact a TCPA attorney if you're involved in a TCPA case.

FCC Acts to Prevent Fraud in Toll Free Texting

Last month, the FCC issued a Declaratory Ruling and Notice of Proposed Rulemaking in which the agency proposed new rules to prevent fraud in toll free texting. An example of the potential for fraud was provided by the FCC:

"For example, a toll free number on the back of a credit card could be text-enabled by a third party without the knowledge of the bank that subscribes to the toll free number, and fraudulent texts could then be sent to a consumer asking for sensitive account information."

Read the full press release, which includes the specifics of the proposed rules, here. Related: Is Text Marketing Legal? Learn more about text marketing laws.

Judge Rules that Ringless Voicemail Drops are Covered by the TCPA

In a first of its kind ruling, a Michigan Judge has ruled that ringless voicemail drops are "calls" under the TCPA. The case is Karen Saunders v. Dyck O’Neal, Inc. This is the first instance of a judge making a ruling regarding the legality of ringless voicemail technology, although the FCC and most states have remained silent on the issue. Read the full order here. While this decision creates no binding precedent on any other case, thankfully, other judges might at least look at it when making their own decisions. Learn more about telemarketing compliance.