DECEMBER 2017

Federal Communications Commission

The Federal Communications Commission (“FCC”) has issued a press release reminding consumers of common holiday telephone scams including calls requesting payment using gift cards. 

Comment: Caller ID spoofing is also rampant and the Commission continues to seek technological solutions for this illegal activity.

Federal Trade Commission

On December 18, the Federal Trade Commission (“FTC”) issued its data review of the national “do-not-call” registry for 2017.  See https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2017.  Included in the data are the number of active registrations (229 million) and the number of complaints.  Of the seven million total complaints received by the FTC, 4.5 million involved robocalls.

Comment: Based on the complaints, it is clear why the FTC has prioritized enforcement of robocall restrictions.

Three individuals who allegedly posed as lawyers to collect debts have been banned from engaging in future debt collection businesses pursuant to a settlement with the FTC.  FTC v. Hardco Holding Group, LLC et al.

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has reversed a trial judge’s decision concerning the retroactive effect of the federal debt exception to the Telephone Consumer Protection Act (“TCPA”).  That exemption, created by Congress, exempted calls collecting a debt owed to or guaranteed by the federal government from the TCPA cell phone call ban.  A trial judge ruled that a class action of student loan borrowers could not proceed given the new exemption, but the Ninth Circuit disagreed.  Silver v. Pennsylvania Higher Education Assistance Agency.

California

A California court has dismissed a TCPA claim brought against a business payment company.  Naiman v. TranzVia, LLC.  The plaintiff had alleged TranzVia was vicariously liable for calls placed by a telemarketing company.  TranzVia convinced the judge that it had no right to control the marketing company which was only an independent contractor.  Because the plaintiff presented no facts showing TranzVia was aware of TCPA violations and continued with the contract, the judge dismissed the case.

A California judge has dismissed a claim against a dialer company alleging it was vicariously liable for calls placed by the dialer company’s customers.  Linlor v. Five9, Inc.  Because the plaintiff could not allege Five9 directed or supervised the manner and means of the text message campaign, the sender did not have an agent/principal relationship with Five9, and therefore dismissed Five9 from the complaint.

Florida

A bill has been introduced in the Florida Senate (SB 1276) which would change the disclosures required during telephone calls supporting political candidates or ballot proposals.  Calls conducted by independent entities would be required to disclose who paid for the call and that the call was made “independently of any candidate, committee, or organization.”

A Florida court has ruled in favor of a mortgage company which allegedly called the plaintiff without his prior express consent.  Harrington v. Roundpoint Mortgage Servicing Corp.  Plaintiff’s cell phone number was included in his construction agreement, but the mortgage company was eventually taken over by the FDIC and the loan was transferred to defendant.  Defendant called the number hundreds of times but Harrington only answered one of the calls.  The judge upheld the FCC’s ruling that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent of instructions to the contrary.”  The judge also ruled that the transfer of the mortgage to a new company did not cancel that consent.

Georgia

A Georgia court ruled against a defendant which claimed that an arbitration clause applied to plaintiff’s claim of illegal texts after a “do-not-text” request.  Gamble v. New England Auto Finance, Inc.  Although the plaintiff had a loan with an arbitration clause, which included her consent to receive text messages, she revoked that consent.  The court ruled that her claim of texts after that revocation did not relate to the loan agreement and were therefore not subject to arbitration.

Kentucky

A bill has been proposed in the Kentucky legislature (18 RS BR 79) which would add falsifying caller ID to the list of illegal telephone solicitation acts under Kentucky law.

Massachusetts

A Massachusetts court has ruled a TCPA plaintiff could obtain opt-in information from persons allegedly called in violation of the “do-not-call” list.  Johansen v. Liberty Mutual, Inc.  The plaintiffs also requested lead generation policies to determine whether the defendant knew that its vendors’ practices violated the TCPA and thus could be vicariously liable. 

Comment: The plaintiff has filed many TCPA class actions but this is one of the first I’ve seen involving the national “do-not-call” list.

Ohio

An Ohio court has struck claims by a recipient of faxes that it could obtain actual damages from allegedly illegal faxes.  Progressive Health & Rehab. Corp. v. Quinn Med., Inc.  The court ruled that this would by necessity mean an individualized question precluding class certification.

An Ohio court has ruled that a named plaintiff who pretended to be interested in a telemarketing presentation with the sole purpose of creating a TCPA claim “casts serious doubt on his fitness to serve as an adequate class representative.”  Johansen v. National Gas & Electric, LLC.  The judge concluded that plaintiff’s “deceptive conduct” gave the defendant reasonable basis to assume an established business relationship and ordered the plaintiff show cause within 30 days why the class action should not be dismissed.

Comment: Ken Johansen is a common plaintiff and this decision should be a strong weapon against him and other plaintiffs who trap or trick callers into alleged TCPA claims.