February 2014

In this issue:

  • A California court has refused to dismiss a case against an insurance company by an individual who received calls intended for another person. Only v. Progressive Casualty Insurance Company.
  • A United States District Court has frozen the assets of an Orlando based company that sent prerecorded telephone calls purportedly offering “free” medical alert devises to seniors. FTC v. Worldwide Info Services, Inc. Comment: The script supposedly claimed that the devices had been purchased for the recipient of the call by a relative or a friend. This is obviously fraud, and not really a “technical violation” that a company attempting to be compliant might face. Nevertheless, this case shows an example of when the FTC will “kick the door down” on a defendant, i.e. prerecorded calls attempting to commit fraud on seniors.
  • A class action in New Mexico has been filed against a company operating red light cameras on behalf of Albuquerque. After the city removed the red light cameras, the operator hired a debt collector which sent prerecorded calls to persons who allegedly ran red lights and did not pay the automated tickets.

Federal

Federal Trade Commission

A United States District Court has frozen the assets of an Orlando based company that sent prerecorded telephone calls purportedly offering “free” medical alert devises to seniors. FTC v. Worldwide Info Services, Inc.

Comment: The script supposedly claimed that the devices had been purchased for the recipient of the call by a relative or a friend. This is obviously fraud, and not really a “technical violation” that a company attempting to be compliant might face. Nevertheless, this case shows an example of when the FTC will “kick the door down” on a defendant, i.e. prerecorded calls attempting to commit fraud on seniors.

State

Alaska

A bill has been proposed in the Alaska House (HB 206) which would ban false, deceptive, or misleading statements during telephone solicitations by car dealers.

California

A California court has refused to dismiss a case against an insurance company by an individual who received calls intended for another person. Only v. Progressive Casualty Insurance Company.

Comment: This is a “list hygiene” case where the defendant placed calls to numbers it had associated with its customers but the number had been reassigned or otherwise became controlled by the plaintiff. The Court ruled that the plaintiff could proceed with his suit. Thus, it is extremely important that you independently institute “list hygiene” procedures for lists of numbers you call to ensure that they are still controlled by the person with whom you have a relationship or who expressly consented to receive your calls in the past.

A website which provided prerecorded call services to plaintiffs was sued by an individual who received calls through that service. Couser v. Prepaid Legal Services, Inc. The Court disagreed and held that the web service did place the call on behalf of its customer. The Court noted that the service suggests “it” actually places the calls. The Court ruled that it likely would exempt a “middleman” that did not actively place calls, but that whether the defendant was a middleman or not needed further investigation.

Comment: If you have a website or service intended to act as a middleman, you should be absolutely sure that your contracts and procedures are consistent with that and that legal responsibility for the call is placed on the users of the system.

Florida

A trial court has asked an appellate court to rule on what constitutes “prior express consent” for debt collection purposes. MAIS v. Gulf Coast Collection Bureau, Inc. The trial court asked the appellate court to rule on the following four questions: 1) whether a district court has jurisdiction over the Hobbs Act to review an FCC Order in a TCPA case, 2) if the Court does have jurisdiction, whether the FCC’s pronouncement on the definitions of “prior express consent” are entitled to deference, 3) if the Court lacks jurisdiction, whether the FCC’s opinion on “prior express consent” is limited to consumer credit or does it apply to medical care setting as well, and 4) whether a medical provider’s consent to use patient information includes calls for debt collection purposes.

Comment: This ruling could be very important for the standard of “prior express consent” set forth in the FCC’s recent order, i.e. for non-telemarketing transactions, oral or written express consent is permitted for ATDS calls to a consumer cell phone.

Idaho

A bill has been proposed in the Idaho House (HB 55) which would require that telephone companies honor internal “do-not-call” requests from consumers.

Comment: Federal law already requires telephone companies to honor internal “do-not-call” list requests.

Illinois

The Court of Appeals of the Seventh Circuit has ruled that a settlement offer did not make a plaintiff moot as a class action representative because the offer did not fully satisfy the plaintiff’s demands. Scott v. Westlake Services, LLC. The Court ruled that the settlement offer can render a plaintiff’s case moot, it just did not do so in this case.

An Illinois court has ruled that a business may record its own telephone calls for the purpose of assisting customers with the use of services. Norman v. Northern Illinois Gas Corporation.

Comment: Although Illinois’ eavesdropping statute is a “two-party” rule, it does have an exception for businesses in certain legitimate circumstances.

Kansas

The Kansas legislature is considering a bill which would expand the State’s No-Call law to include cell phones.

Comment: Cell phones are already included on the National List and Kansas does not maintain its own “do-not-call” list. This bill allows the State Attorney General to enforce the state law, but federal law already allowed that office to file enforcement actions. In summary, if this law passes it would have no effect.

Louisiana

Louisiana’s “No-Call” rules include statutory and regulatory restrictions. The Public Service Commission has issued an order which contains restrictions which go beyond the statute, and sometimes apply even in situations which seem outside the jurisdiction of that Commission. One example is the Commission’s attempt to apply a curfew to 501(c)(5) organizations (which are not tax deductible charities). We recently reviewed the curfew and determined that many nonprofit organizations calling on their own behalf would be exempt from the curfew exemptions.

Missouri

Missouri Attorney General has filed suit against Time Share Relief, Inc. and its owner alleging violation of Missouri’s “No-Call” law. The State alleges Time Share Relief made prerecorded calls to Missourians on the “no-call” list offering services to assist consumers in selling time shares. The company received more than 100 complaints about the telemarketer.

New Mexico

A class action has been filed against a company operating red light cameras on behalf of Albuquerque. After the city removed the red light cameras, the operator hired a debt collector which sent prerecorded calls to persons who allegedly ran red lights and did not pay the automated tickets.

Comment: If you have been reading this newsletter or my letters in the past decade, you would know that prerecorded calls to cell phones are allowed only with the prior express consent of the recipient. Unless the persons who allegedly ran the red light provided their telephone number to the red light camera company, they did not expressly consent to receive these calls.

Pennsylvania

A Pennsylvania appeals court has ruled that an insurance company did not have a duty to defend a sender of faxes which allegedly violated the Telephone Consumer Protection Act. Nationwide Mutual Insurance Company v. David Randall Associates. The Court has stayed a TCPA case until the FTC rules on the definition of automatic telephone dialing system. Mendoza v. United Health Group, Inc. The defendant noted that the FCC is currently considering multiple petitions for a declaratory ruling to address this issue and therefore stayed the case pending those rulings.

Wisconsin

Wisconsin’s General Assembly has passed a bill (SB 155) which would eliminate the State “Do-Not-Call” List and rely solely on the Federal “Do-Not-Call” List. Wisconsin would still require a registration, however, but it would not be associated with state “do-not-call” list. Comment: The bill is awaiting signature of the Governor.