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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JUNE 2017

General Comment

As everyone knows, Telephone Consumer Protection Act (“TCPA”) cases, especially class actions, are primarily driven by the attorneys who expect to receive a third or more of potentially multi-million dollar settlements while the named plaintiffs receive at most a payment of a few thousand dollars.  As such, the client generation process has become very competitive—I have seen Facebook popups, Google word search popups, and now a Reddit link from a TCPA class action plaintiff’s attorney.  See https://www.reddit.com/r/IAmA/comments/3cthh6/i_am_attorney_jeremy_glapion_and_i_sue_companies/.

Comment: The post is archived, so I’m not sure if Glapion still uses this means to create clients.  He claims he can obtain damages for more than one allegation per call, i.e. meaning up to $3,000 per call, something rejected in at least one court of appeals ruling.

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MAY 2017

Federal Communications Commission

The Federal Communications Commission (“FCC”) has requested comments regarding whether “ringless voicemail” to a person’s cell phone is regulated by Telephone Consumer Protection Act (“TCPA”) restrictions on calls to cell phones.  See http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0418/DA-17-368A1.pdf.  This technology allows a caller to leave a voicemail message on a consumer’s cell phone without the phone ringing.  Although the comment period is closed, reply comments may be filed before June 2, 2017.

Comment: I think it very unlikely that the FCC will grant this petition ruling that a voicemail is not a “call” as defined in the TCPA.

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APRIL 2017

Federal Communications Commission (“FCC”)

On March 28, 2017, the FCC requested comments on a petition asking the commission to clarify that research survey invitations do not constitute advertisements under the Telephone Consumer Protection Act (“TCPA”).  In re: M3 USA Corp. Petition for Declaratory Ruling, CG Docket 02-278.  Comments were due by April 27, 2017. 

Comment: M3 used faxes to announce surveys and has been sued in a purported class action alleging those market research surveys were advertisements.  Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M3 USA Corp., No. 16-cv-80967 (S.D. Fla. June 10, 2016).  That plaintiff has filed 14 different TCPA class actions, all but three of which have been voluntarily dismissed.

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MARCH 2017

Federal Communications Commission (“FCC”)

The FCC has issued a consumer advisory regarding a fraudulent telemarketing campaign which apparently seeks to get consumers to say the word “yes” during a call and later use a recording of the response to authorize unwanted charges on the consumer’s telephone or other utility account.

Comment: A “yes” taken out of context certainly is not legally binding and any entity proposing this sort of sales campaign for your business should be avoided.

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JANUARY 2017

Federal Communication Commission

The Federal Communication Commission (“FCC”) has announced a consent decree with Birch Communications to pay $6.1 million to settle allegations of cramming on consumer telephone bills.  The FCC’s enforcement bureau alleged that Birch’s telemarketers misrepresented their identity and the purpose of the telemarketing calls including claiming to be affiliated with the consumer’s current carrier.

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DECEMBER 2016

Federal Communications Commission (FCC)

On November 18, the FCC issued an advisory opinion stating that autodialed text messages are subject to the Telephone Consumer Protection Act (TCPA).  See https://www.fcc.gov/document/enforcement-bureau-issues-robotext-advisory.  The advisory states that messages including texts delivered through an automatic telephone dialing systems (ATDS) are subject to the TCPA.  The FCC reaffirmed its ruling that a sender of a text to a number that has been reassigned is protected only for the first text, and subsequent texts to the new subscriber (who presumably did not provide consent) are illegal “regardless of whether or when they learn of the reassignment.”

Comment: As we have stated before, the “safe harbor” for reassigned numbers is illusory as it only applies to the first communication to the reassigned number and knowledge of reassignment is thereafter imputed to the sender regardless of actual knowledge.

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