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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NOVEMBER 2016

Federal Communications Commission (FCC)

The FCC has dismissed petitions for reconsideration of a total of $20 million in fines issued against four prepaid calling card companies.  The FCC alleged the companies falsely advertised that the cards would provide consumers more minutes than actually provided as the cards assessed fees and surcharges diminishing minutes available.  See https://apps.fcc.gov/edocs_public/attachmatch/DOC-341936A1.pdf.

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JULY 2016

FCC

On July 5, 2016, the FCC exempted congressional “tele town halls” from the TCPA restrictions on calls to cell phones and prerecorded voice calls.  The FCC stated that “federal, state, and local governments are not persons as that term is used in the TCPA.”  The FCC further ruled that the term does not include a contractor for a government agency working on its behalf. The ruling is available at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0706/FCC-16-72A1.pdf.  

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JUNE 2016

First Circuit Court of Appeals

A judge has indicated in a TCPA action that she intends to rule that an individual plaintiff’s claim is made moot by payment to him for full relief.  Johansen v. Liberty Mutual.  The argument goes that if the plaintiff’s claim is fully satisfied, he can no longer act as a representative of a class, and the class must be dismissed.

Comment: The Supreme Court rejected most of this argument in a case decided last term known as Campbell-Ewald Co. v. Gomez.  The Court, however, left open the possibility that defendants could deposit money with the plaintiff directly or with the Court, and this judge is relying on that language.  If she rules in favor of the defense, this will create a split among the circuits and the issue will likely will go back to the Supreme Court.

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