Telemarketing Connections Newsletter

Monthly News Summaries

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In this issue:

The FCC adopted changes in the Telephone Consumer Protection Act regulations which will require express written signed consent for text messages, prerecorded calls, and predictive dialed calls to cell phones. The rule goes into effect one year from publication in the Federal Register. Non-telemarketing messages will still be allowed with express consent (oral or written) but advertising messages and solicitations will require written/signed consent.
The odds of a firm being sued in federal court are over six times lower, when the firm provides free credit monitoring following a breach of privacy, according to new research. See Empirical Analysis of Data Breach Litigation.
In California, a court has denied a Motion to Dismiss brought by Google in response to a class action alleging unsolicited text messages. Pimental v. Google, Inc.

In this issue:

The FCC has announced that it will consider what constitutes “prior express consent” under the TCPA at its February open meeting.
Online shoe merchant, Zappos’ database was hacked last month exposing approximately 24 million customer records including names, email addresses, billing and shipping addresses, phone numbers and last four digits of credit card numbers.
The FTC announced settlements with two entities which placed prerecorded telephone calls to consumers. United States of America v. Voice Marketing, Inc., et al. and United States of America v. VoiceBlaze.com, et al. ... Each set of defendants will pay a $10,000 fine, reduced from judgments of more than one million dollars.

In this issue:

The Bureau of Consumer Financial Protection has issued interim regulations implementing the Fair Credit Reporting Act restrictions on affiliate marketing.
In Illinois, the owner of a company, Universal Marketing Solutions, has been sentenced to 15 years in prison for directing a fraudulent telemarketing program involving timeshare sales.
A bill has been introduced in the Missouri Senate (SB 594) which would specify that the “do-not-call” list applies only to numbers used primarily for personal or family use.

In this issue:

An Illinois company will pay a $500,000 fine to the FTC to settle allegations that it did not honor consumer requests to be placed on company-specific “do-not-call” lists. FTC v. Americall, et al.
The FTC has published a final rule amending its Business Opportunity Rule. See 76 Fed. Reg. 76816. The rules will become effective on March 1, 2012, and apply to entities selling franchises and other business opportunities.
A Mississippi court has ruled that the federal Truth in Caller ID Act of 2009, which is part of the TCPA, preempts conflicting state caller identification law. Teltech Systems v. Barbour.

In this issue:

The Securities and Exchange Commission has proposed adopting new rules regarding telemarketing including “do-not-call” lists, hours of telephone solicitation, and bans on deceptive and abusive acts.
In California, a court has denied Citibank’s motion to dismiss a purported class action against it for allegedly sending unsolicited text messages.
In Maine, the customers of a grocery store whose electronic payment data was allegedly stolen by third parties won a victory against the grocery store for failure to notify them of the breach. The First Circuit ruled that the grocery store was liable for mitigation damages, i.e. the costs associated with consumers protecting themselves from the breach.

In this issue:

The FCC announced a $4,500 forfeiture order against Western Aviation, Inc. alleging violation of the TCPA prohibition of unsolicited fax advertisements.
The FTC has refunded money to more than 180 small businesses which were allegedly defrauded by telemarketing companies selling business directory listings.
A New York court has ruled that a consumer who unintentionally received calls placed to another debtor by accident is not entitled to sue under the TCPA for those calls.

In this issue:

The FTC has raised its charge for the national “do-not-call” list from $55 to $56 per area code with a maximum fee of $15,503 for a nationwide list. The revised fees become effective on October 1, 2011.
The United States Supreme Court will hear a case to determine whether federal courts have jurisdiction over TCPA actions. There is currently a division in the circuits with some federal courts holding that they can hear TCPA actions and others holding that such actions can only be brought in state court. Mims v. Arrow Financial Services.
An Illinois court has ruled that a debt collector is entitled to call the plaintiff’s mobile telephone number which he provided pursuant to an agreement with the debt collector. Because he provided the telephone number to the debt collector, the judge ruled that the debtor expressly consented to calls to his cell phone at that number. Frausto v. IC Systems.

In this issue:

The FTC has settled charges against a debt relief company and its principals alleging violations of the Telemarketing Sales Rule provisions against charging fees for debt relief services before those services are provided.
An Illinois court has refused to dismiss a suit against ADT which argued that it was not responsible for calls placed on its behalf by vendors.
An appeals court in New Jersey has dismissed a class action of businesses which allegedly received unsolicited facsimiles in violation of the TCPA. The court ruled that $500 per fax was sufficient redress and a class action was not necessary.

In this issue:

The FTC has announced that it will revise its guidance to business concerning disclosures in online advertising. It is likely that the new guidance will cover mobile marketing, as well.
The Seventh Circuit has reversed a trial court which certified a class action under the Telephone Consumer Protection Act which had alleged that a plaintiff had received two unsolicited faxes from the defendant. CE Design Limited v. King Architectural Metals, Inc.
A federal court has ruled that the ban on prerecorded calls in the TCPA does not prohibit or apply to prerecorded debt collection calls.

In this issue:

A TCPA class action complaint has been filed against Twitter alleging that the text messages Twitter sends to confirm an opt-out (of text messages) violates the TCPA.
A Maryland bill has been enacted in the Maryland Senate (SB 741) which would require registration for entities offering debt settlement services.
A Pennsylvania court has dismissed a plaintiff’s allegations against a debt collector for violation of the TCPA and other statutes. The court ruled that the plaintiff did have standing to sue under the TCPA, even though she was the unintended recipient of calls.

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