FEBRUARY 2016

TCPA Cell Phone Ban Exemptions

As you know, there are several exemptions to the ban on calls to cell phones found in the TCPA. The exemption created by Congress for debts owed to or guaranteed by the federal government is getting some press.  http://www.marketwatch.com/story/is-this-robocall-illegal-the-line-blurs-for-people-with-student-debt-2016-02-04

Comment: This exemption is not a tiny loophole, but a massive opening applicable to potentially thousands of companies which offer or collect government guaranteed student loans, mortgages, business loans and many other types of loans.

FTC

The FTC may be reconsidering its letter ruling holding that calls using prerecorded voices managed by live operators are not regulated by the FTC’s prerecorded call restrictions.

Comment: The issue is moot in a sense because the FCC never exempted live operator managed prerecorded calls from its restrictions on calls “using” prerecorded voice, and the TCPA with its associated potential for class actions is the more serious compliance issue.

Ninth Circuit

The Ninth Circuit has ruled that a consumer who provided her telephone number to Hawaiian Airlines expressly consented to receive texts at that number and did not provide any “instructions to the contrary” such as a “do-not-call” request.  Baird v. Sabre, Inc.  The text message in question concerns flight notification services, and did not include an advertisement or sales presentation.

Comment:  This is an excellent case as it calls into question language in an earlier Ninth Circuit case, Satterfield v. Simon and Shuster, which plaintiffs argue imposed a higher standard of “prior express consent.”

Arizona

A bill has been introduced in the Arizona Senate which would apply the state’s telemarketing law to calls to or from the state.  (SBE 1375)

California

A California court has approved a $13 million class settlement involving debt collection calls placed by Wells Fargo Bank to numbers which had been reassigned to consumers unrelated to the original debtors.  Franklin v. Wells Fargo Bank.

Florida

A court has ruled that a consumer who obtained a mortgage from a bank provided his “express consent” when he listed his cellular telephone number as his contact number and included his cellular telephone number on letters to the bank.  Lawrence v. Bayview Loan Servicing, LLC. The calls were not sales calls but were intended to administer the existing account.  The court did rule that he could affectively revoke this consent. Calls after that revocation were illegal.

A Florida court has rejected a TCPA defendant’s argument that its unaccepted offer of judgment made the case moot such that it could not proceed as a class action.  Payne v. River Rocks, LLC.

Comment:  This ruling is consistent with the Supreme Court decision in Campbell-Ewald.

Kansas

A California company has agreed to pay $110,000 in penalties and fees for violating Kansas’ “No-Call” Act.  Schmidt v. Judson Enterprises, Inc.  Kansas consumers also complained that the business did not immediately disconnect the call after the consumer stated he or she was not interested.

Comment:  Eleven states have “immediate disconnect” or a/k/a “no rebuttal” laws.  Kansas is one of the few states which have successfully obtained judgments for violations of the provision - one time because a defendant, in response to a subpoena, provided a script to the Attorney General with a section entitled “rebuttals.”

Mississippi

A bill has been proposed in the Mississippi House (HB 64) which would add wireless telephone numbers used primarily for nonbusiness purposes to numbers which could be included on the Mississippi “do-not-call” list.  Additionally the bill would add solicitations for charitable contributions to the definition of “telephone solicitation” covered by the “no-call” list.

New Jersey

A bill has been introduced to the New Jersey General Assembly which would establish a telemarketing fraud investigation unit with the Division of Consumer Affairs.  (AB 2897)

New York

The New York General Assembly is considering a bill which would create a curfew for calls before 8 a.m. or after 8 p.m.  (AB 9156)  The bill would provide for private cause of action for liquidated damages of $500 or $1,500 for knowing and willful violations.

Pennsylvania

A bill which would ban telemarketing calls on legal holidays has passed the House and to have been referred to the Senate Committee on Consumer Protection.  (HBA 20)

Texas

A court has denied a Motion to Dismiss a proponent class action against an insurance company.  Jamison v. esurance Insurance.  The court ruled that esurance’s Rule 68 offer to the plaintiff did not make her claim moot.