AUGUST 2015

Court of Appeals

The Sixth Circuit Court of Appeals has ruled that there is no reasonable expectation of privacy for “pocket-dialed calls”, a.k.a. “butt dials”.  Huff v. Spaw.  Huff inadvertently called Spaw while on a business trip to Italy.  Spaw stayed on the line for 91 minutes and listened to a conversation between Huff and a work colleague.  She transcribed and recorded the conversation.

Comment: The Court ruled that the conversation did not violate the wiretap “call monitoring” statute because Huff had no reasonable expectation of privacy on the call.  The Court ruled that exposure of a conversation, if public, need not be deliberate and instead could be a product of neglect.

 FCC

The FCC has alleged that LifeLock failed to abide by a 2010 agreed upon settlement by continuing to make deceptive claims about identity theft protection services and failing to take steps to protect its users’ data.  At the time, LifeLock paid $12 million in consumer refunds.  The FTC now alleges the company failed to establish a comprehensive security program to protect its users’ data, falsely advertised claims regarding its protections, and failed to meet the 2010 settlement’s recordkeeping requirement.

 Supreme Court

The Supreme Court oral argument for the Campbell-Ewald Company v. Gomez case has been scheduled for October 14, 2015, and will decide whether a defendant can settle, involuntarily, with an individual plaintiff to defeat a class action.

Comment: The argument is that the named plaintiff no longer has a claim and thus cannot represent the class if a defendant offers that plaintiff full satisfaction of his or her claims.

 TCPA

Gallup, a polling firm, has entered a $12 million settlement in a TCPA class action.  While Gallup did not place the alleged calls through a predictive dialer, the plaintiff argued Gallup’s dialer had the “capacity” to make the predictively-dialed calls.

 U.S. Congress

FCC Chairman Tom Wheeler testified before the House Energy and Commerce Panel last week regarding the effects of his new TCPA ruling on political telephone town halls, a means of communication beloved by most members of Congress.  “Wheeler was unapologetic at the hearing” claiming that telephone town halls may be banned under the new restriction. 

 A report by the Centers for Disease Control and Prevention stated that 41 percent of American households did not have landlines in 2013 and Americans are dropping their landlines at the rate of 3 to 5 percent per year, which the CDC believes is a legitimate public health concern with regard to bans on calls to cell phones without prior express consent.

Comment: This may be the time that Congress changes the TCPA, so now is the time to contact your legislator regarding how the FCC’s nonsensical rule change does not benefit consumers, hurts legitimate businesses, and affects employment in many members’ districts.

 Nevada

A strip club which sends promotional text messages to its customers has beaten a TCPA claim against it because the Court ruled that human intervention was required to send the messages, including manually typing the number or uploading a list of numbers to a website, typing the messages’ content, and clicking send to deliver the messages in real time or at some future date.  Luna v. SHAC, LLC.