APRIL 2018

Federal Communications Commission

Federal Communications Commission (“FCC”) Commissioner Mignon Clyburn, an appointee by President Barack Obama, has announced she is stepping down as Commissioner.

On April 23, 2018, the FCC held a Stop Illegal Robocalls Expo in Washington D.C. in conjunction with the Federal Trade Commission (“FTC”).

Federal Trade Commission

On April 18, 2018, Lois Greisman testified before the Senate Committee on Commerce regarding efforts to combat illegal robocalls.

The FTC has settled claims against three debt relief marketers obtaining assets worth approximately $35 million to settle charges including violation of the Telemarketing Sales Rule (“TSR”).   FTC v. Jeremy Lee Marcus, et al.

Comment: The FTC alleged the defendants had charged for debt relief services prior to services being provided in violation of the rule.

Alabama

A bill has been proposed in Alabama (HB 488) which would require prompt disclosure of the solicitor’s true name and charitable organization on whose behalf a solicitation is being made and, before an agreement to donate is completed, disclosure of the percentage of the contribution that will be used for a charitable contribution versus other purposes including administrative costs.

California

A restaurant customer has sued Buffalo Wild Wings after it sent him two texts following a visit when no tables were immediately available.  Meeks v. Buffalo Wild Wings.  He provided his cell phone number to the restaurant to be notified when a table was available, and received a text immediately following that and four months later.

Comment: It is very important that texts be limited to the consent obtained, and adding a consumer’s number to a text list based on a “text me when the table is ready” request is not appropriately limited.

Florida

On March 19, 2018, Governor Rick Scott signed Florida’s Senate bill (SB 568) which adds voicemail transmission to the definition of “telephonic sales call” as that term is defined in state law.  “Ringless” voicemail and other voicemails now are explicitly included in Florida’s no-call restriction.  Thus, they are now explicitly subject to the state’s no-call rules.

Florida has enacted the “Call Blocking Act” (HB 1267) which allows telecommunications providers to block certain calls based on subscribers’ requests.  Providers may also block numbers which are not valid based on the North American Numbering Plan, not allocated to providers pursuant to that plan, or allocated to providers, but unused.  The Act takes effect July 1, 2018.

Comment: This law is largely consistent with the new FCC regulation on the same topic.

Kentucky

A bill has been proposed in the Kentucky House (HB 4514) which would ban the transmission of misleading or deceptive caller identification information.

Louisiana

The Louisiana House is considering a bill (HB 594) which would prohibit all telephonic solicitation of persons older than 65.  The bill would ban any voice or data communication for the purpose of encouraging a sale or rental of goods or property or solicitation of a contribution of charitable donation.

Comment: Even if charitable solicitations were not included in this restriction, this section is blatantly unconstitutional and would be struck down by any court which reviewed it.

A Louisiana court has dismissed a class action brought against the American Heart Association and two insurers.  Reese v. Anthem, Inc.  The plaintiff alleged that texts sent to her were actually advertisements for insurance or other advertising.  She signed up to receive communications regarding CPR, and received several texts with class location and other information.  The judge dismissed the case ruling that the texts were not advertisements as defined in the Telephone Consumer Protection Act (“TCPA”) and were information constituting “a public resource to seek CPR training.  This resource is the type of communications plaintiff wanted and signed up to receive: information about CPR and healthy living.”

Comment: This case is important for entities which send informational text messages.  Plaintiffs have argued that the “informational” message was actually a subterfuge for advertising, and this case rejects that argument.

New Jersey

A New Jersey court has dismissed another putative text class action.  Rando v. Edible Arrangements International, LLC.  When the plaintiff claimed she revoked consent to receive texts by replying “take my contact info off please” and “I want to confirm I have been removed off of your contacts.”  The text messages sent her stated “Reply HELP for help.  STOP to cancel.”  The plaintiff did not use the word “STOP”.  The court ruled her method of revocation was not reasonable and the designated means to opt out was not difficult or impossible to use.

Comment: It seems pretty clear this case was a “set up” by the plaintiff attempting to create a TCPA claim.  The court noted, “her failure to follow the apparently clear and apparently non-burdensome opt out instructions remains unexplained.”

West Virginia

West Virginia has passed a law (HB 4150) which prohibits transmission of misleading or inaccurate caller identification information.  Communication service providers delivering another entity’s communications are exempt.