MARCH 2018

Federal Communications Commission

Numerous comments have been filed in support of Outcome Health’s request for a safe harbor with regard to Telephone Consumer Protection Act (“TCPA”) restrictions on calls and texts to cell phones.  One counter-argument came from plaintiff’s attorney Jeremy Glapion, who argued callers should not be protected in the event of “technical errors”. 

Comment: Glapion happens to represent Christie Griffith, who alleged she received faxes, a class action should be certified, and outcome should not be protected by “good faith” defense.

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JANUARY 2018

Federal Trade Commission

The Federal Trade Commission (“FTC”) has settled charges against a Utah woman, Jamie L. White, who allegedly violated the Telemarketing Sales Rule (“TSR”).  Under the terms of the settlement she is banned from telemarketing.  Charges were first brought December 6, 2017 and alleged she provided payment processing services to fraudulent telemarketing operations.

The FTC brought these charges under its standards for “accomplice liability” despite the fact that White made no calls herself, nor did any company she owned make calls.  A business or individual can be liable under the standard if it knows, has reason to know, or consciously avoids knowing of wrongdoing by its business partners.  For example, if a contractor requires compliance with the TSR and other law but a business has knowledge that its partner is ignoring that provision and continues the business relationship, it can be held liable even if it did not violate the TSR directly.  The FTC can use this standard to pursue domestic companies working with international companies, companies with assets versus companies without assets, etc.

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NOVEMBER 2017

Federal Communications Commission

On November 16, 2017, the Federal Communications Commission (“FCC”) issued a guide preventing unsolicited prerecorded telemarketing calls and adopted new rules to allow voice service providers to proactively block certain types of calls “likely to be fraudulent”.  See https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts.

Comment: I have had several clients’ telephone numbers blocked in error, however, when I contacted a blocking telephone company, they removed the block.

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AUGUST 2017

Federal Communications Commission

The Federal Communications Commission (“FCC”) has issued another notice of apparent liability for alleged illegal caller ID “spoofing”, fining an insurance seller more than $80 million with no prior citation.

Comment: Under the Telephone Consumer Protection Act (“TCPA”) generally the FCC must issue a citation before it can fine any non-regulated (e.g. non-telecommunications) company.  This is the second time the FCC has avoided the requirement to first cite a company, by fining the company not for the calls but for illegal caller ID.  It remains to be seen whether the fined companies will challenge this “end run” around the citation requirement.

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