April 2015

FCC

The FCC has requested comments regarding a petition for declaratory ruling filed by Blackboard, Inc., a company which sent out educational texts related to educational organizations. Blackboard requested a declaration that all education-related texts are for “emergency purposes,” or that messages sent to wireless numbers were sent with prior express consent even if the wireless number was no longer controlled by the consumer who provided it.  Comments are due April 22, 2015.

The FCC has sought comment regarding a petition filed by a ski resort requesting that prior express consent provided before October 16, 2013, is not invalidated by later changes in the rules effective on that date.  CG Docket No. 02-278

The FCC has designated Telcordia Technologies, Inc. as the next administrator of the ported numbers database.  Telcordia replaces Neustar as the administrator of the database.  This announcement authorizes contract negotiations between an industry consortium and Telcordia to administer this database.

The FCC has announced that nine entities have sought a waiver of the commission’s fax rule for opt-out disclosures.  As of March, only three petitions had been filed.  The deadline for these petitions has been set by the FCC as April 30, 2014. 

Comment: The deadline to request a waiver for the fax disclosure provisions is fast approaching.  The FCC gave this protection to businesses that, in my opinion, were “set up” by class action plaintiffs who requested a fax, then sued when the fax did not contain opt-out disclosures (for a fax they specifically requested.)  If you sent out commercial faxes any time in the past four years you should review whether they contain these disclosures, and, if not, request a waiver.

The FCC has fined AT&T $25 million based on a data breach of consumers’ social security numbers and other account information.  The breaches occurred in call centers in Mexico, Colombia, and the Philippines.

FTC

The FTC and 10 state attorneys general have settled complaints with a cruise company which allegedly used sham prerecorded survey calls to sell cruise trips.  FTC v. Caribbean Cruise Line, Inc.

Comment: An “informational” or “survey” call is neither if the results of such interaction will be used for a later sales attempt.  You cannot cloak a sales call in the guise of a survey and avoid FTC or other restrictions.

A Utah-based debt and mortgage relief company has entered settlement barring them from marketing debt relief services in the future.  FTC v. Philip Danielson, et al.  The defendants allegedly told consumers they could obtain relief from mortgage payments.  The defendants charged between $500 and $3,900 for these services.

California

A California court has denied a motion to dismiss a purported class action brought against a sender of text messages.  Haghayeghi v. Guess ?, Inc.  Plaintiff alleged she received unsolicited text messages on her cell phone.  The judge ruled that, on the face of the complaint, the plaintiff had stated a claim that she did not consent to texts to her cell number.

Illinois

Walgreens has settled a TCPA class action for $11 million resolving allegations it called consumers’ cell phones with prerecorded prescription reminder calls without their prior express consent.  Kolinek v. Walgreen Co.

Comment: The plaintiff had provided Walgreens his telephone number but only after being requested to give it “for identification purposes only.”  The FCC has ruled that a consumer who provides his telephone number to a business expressly consents to calls to that number, absent instructions to the contrary.  Although this rule has since been changed for marketing calls, now requiring express written signed consent, the plaintiff argued that the request for his number constituted “instructions to the contrary” because it was limited to identification purposes.  Walgreens then settled the case after losing the argument that prescription reminder calls were for emergency purposes.

Washington

A Washington court has certified a class of persons who allegedly received prerecorded calls in violation of the TCPA.  Booth v. Appstack, Inc.  The defendant sold a mobile marketing solution to small businesses and created advertising campaigns to drive traffic to their website.

Comment: The defendant bought leads and sent prerecorded messages.  The messages further did not disclose legal name for caller or telephone number.  In March 2013, when the calls were sent, it was clear that this course of action was a recipe for disaster.

Wisconsin

A Wisconsin judge has denied a request for a stay of a TCPA case.  The defendants had asked the Court to delay the trial based on potential FCC action with regard to calls to reassigned telephone numbers.  Helwig v. Diversified Consultants, Inc.  The Court noted that it was not clear when or whether the commission would ever make a decision on this topic.