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.

Two more petitions have been filed asking for a waiver of the commission’s rules on fax disclosures.

Comment: Recently, the D.C. Circuit Court of Appeals struck down the FCC’s requirement of disclosures on solicited faxes as the agency had no authority to impose them.

Chairman Pai issued a statement concerning the D.C. Circuit Court of Appeals decision to prohibit the FCC from requiring disclosures on solicited faxes.  “Today’s decision by the D.C. Circuit highlights the importance of the FCC adhering to the rule of law.  I dissented from the FCC decision that the court has now overturned because, as I stated at the time, the agency’s approach to interpreting the law reflected ‘convoluted gymnastics.’  The court has now agreed that the FCC acted unlawfully.”

Comment: It looks like the FCC will not be appealing the D.C. Circuit Appellate Court’s decision to the Supreme Court.

The FCC has cancelled its plans to revise regulations allowing cell phone calls on airplanes.  See https://apps.fcc.gov/edocs_public/attachmatch/DOC-344324A1.pdf.

Federal Trade Commission (“FTC”)

The FTC has obtained a temporary restraining order against Spanish language telemarketers who sold books, CDs, and DVDs to consumers, then threatened to sue or arrest those consumers if they didn’t pay.  FTC v. ABC Hispania, Inc. et al.  The complaint alleges the defendants spoofed caller IDs, made false claims, and threats if recipients of the calls did not pay, all violations of the Telemarketing Sales Rule (“TSR”) and the FTC Act.

The FTC has settled claims against an individual who allegedly placed illegal prerecorded calls to persons on the national “do-not-call” registry.  FTC v. Prime Marketing, LLC et al.  The owner of the company Justin Ramsey had already been sued in 2012 by the FTC in a case involving similar allegations.

Florida

A bill has been proposed in the Florida Senate (SB 788) which would regulate lead generation for substance abuse programs.  Companies referring potential patients would be barred from deceptive marketing practices and would require call centers to make an oral disclosure to potential patients.

Illinois

A federal judge has reduced the attorneys’ fee award in a TCPA class action.  Aranda v. Caribbean Cruise Line.  The plaintiffs argued that they should receive one third of the common settlement fund which was between $56 and $76 million.  The judge disagreed and awarded plaintiffs 27.3 percent or at least $14.76 million.

Indiana

A bill to amend the Indiana no-call law (HB 1444) is likely to pass the House and would assign liability for violations of the no-call law both to entities actually making calls and those who directly or indirectly control those callers.  These entities would be responsible for violations unless they did not know of violations and an exercise of reasonable care could not have known of the violations. 

Minnesota

A Minnesota court has dismissed a claim against a company which financed a used car sale, then called plaintiff after the borrower defaulted.  Ung v. Universal Acceptance Corp, No. 15-00127, 2017 U.S. Dist. LEXIS 53720 (D. Minn. April 6, 2017).  The finance company claimed the system was not an ATDS and that the cell phone call ban did not apply.  The plaintiff disagreed.

Comment: The judge dismissed the case ruling that the evidence showed human intervention in each call placed to plaintiff.  He therefore ruled the system was not an ATDS.  The plaintiff argued that the system’s “capacity” to dial without human intervention was what was relevant, not how the calls were actually placed, but the judge disagreed.  The judge noted that “by this logic, almost any telephone could be considered an ATDS.”  The court disagreed with this interpretation and ruled that the human intervention caused the system to not be an ATDS.

New York

A federal judge has dismissed a class action brought against a pharmacy by an individual who gave it his personal information including his cell phone number, then sued after receiving flu shot reminder calls.  Zani v. RiteAid Headquarters Corp., No. 14-cv-09701, 2017 U.S. Dist. LEXIS 53772 (S.D. N.Y. Mar. 30, 2017).  Plaintiff received one flu shot reminder and had an unlimited phone plan so he did not pay any additional price for receipt of the call.  The court found that provision of his number constituted prior express consent and therefore dismissed the case.

Comment: The court also ruled that the call was sent by a business associate of RiteAid’s pharmacies and that they were healthcare reminder messages.  The judge found that evidence that the fact that they were also for marketing purposes was irrelevant.

Vermont

A bill (VT SB 72) which would require the transmission of the telephone number and name of the telephone solicitor via caller ID in the state of Vermont has passed the Senate and is being considered by the House.  The bill would create a private cause of action for $500 for the first violation and $1,000 for each subsequent violation as well as punitive damages and attorneys’ fees in the case of willful violations.