Federal Communications Commission
On December 13, 2018, the Federal Communications Commission (“FCC”) issued a Report and Order (the “Order”) addressing calls to numbers which have been disconnected, then reassigned to a new subscriber. See https://docs.fcc.gov/public/attachments/FCC-18-177A1.pdf.
The Order adds two new subsections to the FCC’s Telephone Consumer Protection Act (“TCPA”) regulations that require carriers to maintain records of when each telephone number is allocated to a consumer or ported to another carrier and provide this database to the FCC monthly.
Callers would not be liable for violating the TCPA’s cell phone call ban if it could demonstrate that it checked this database prior to making the call and after the date prior express consent was obtained for that number. Thus, the rule provides for a limited “safe harbor” if a company uses the database as directed. If the company does not use the database, normal TCPA liability including class actions would apply if the company called a number which had been reassigned to a new consumer.
Comment: The FCC estimated the cost of the database (paid by the caller) to be less than one cent per query. I expect that most business could thus expect to pay $10,000 to $50,000 per year for this access. While substantial, this is much less than the cost of litigating a TCPA class action, so the “safe harbor” may be worth it.
The list will likely be available in 18 to 24 months.
Federal Trade Commission
A federal judge in Florida has issued a permanent injunction banning Kevin W. Guice from telemarketing and debt relief activities. Guice allegedly used prerecorded calls to solicit consumers to purchase fraudulent debt reduction services. The judgment of more than $23 million was not suspended as is often the case when large monetary awards are granted by courts.
The Federal Trade Commission (“FTC”) has issued a summary of the national “do-not-call” list data for the fiscal year 2018. The list contains 235,302,818 numbers, up a small amount from 2017. Consumer complaints from unwanted telemarketing calls decreased from 7.1 million in 2017 to 5.7 million in 2018. The data can be reviewed at https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2018.
A bill has been proposed in the U.S. Senate which would omit the common carrier exemption to the FTC’s jurisdiction. The intent of the bill is to allow the FTC to enforce unfair trade practices rules to require telephone companies to stop illegal robocalling.
Comment: The FCC already has this enforcement rule and adding another agency does not seem to be a solution, nor does it address TCPA litigation reform.
An Alabama court has dismissed a TCPA case brought against a debt collector calling to collect a loan guaranteed by the United States Department of Education. Green v. Navient Sols., Inc.
Comment: Debt collectors calling to collect a debt owed to or guaranteed by the federal government are exempt from the TCPA.
An Illinois court held that an automatic telephone dialing system (“ATDS”) must use a random or sequential number generator, or it is not an ATDS. Johnson v. Yahoo, Inc.
Missouri Attorney General Josh Hawley has announced he has joined a group of 40 state attorneys general working to stop illegal robocalls. The group is led by attorneys general from North Carolina, Indiana, and New Hampshire and seeks both a detailed understanding of what is technologically feasible to minimize illegal robocalls as well as enforcement options.
A New Jersey court dismisses a TCPA “set up” case. Zemel v. CSC Holdings, LLC. Plaintiff replied “HELP” to a message, then claimed subsequent messages were illegal. The court ruled that “when an individual sends a message inviting a responsive text, there is no TCPA violation.”
A Pennsylvania court has ruled that an ATDS must have capacity to randomly or sequentially dial numbers. Richardson v. Verde Energy USA, Inc. Using normal rules of statutory construction, the court held the language of the TCPA includes those words and the court could not read them out of existence when determining whether a system is an ATDS or not. The court then reviewed whether the calls were placed using an artificial prerecorded voice, and held that because some calls involved playing an abandonment message, there was an issue of fact as to whether the calls involved a prerecorded voice.
Comment: Although a substantial victory for the business, because the court ruled the abandonment message may constitute a prerecorded voice, I will carefully track the progress of this case.