January 2013

In this issue:

  • A company has sought a declaratory ruling from the FCC regarding the legality of resumes faxed by a third party on behalf of individual job applicants to “help wanted” postings that requested faxed resumes. C.G. Docket No. 02-278.
  • Several clients have recently received e-mails with a subject line “NOTIFICATION OF CONSUMER COMPLAINT” purportedly from the FTC. These e-mails are NOT from the FTC and likely are a phishing or other fraud attempt. Please disregard and delete these e-mails.
  • A bill has been proposed in Mississippi (MS HB 48) which would automatically bar telemarketers from contacting consumers if they did not answer a telephone solicitation or did not return a call in response to a prior solicitation. The bill also prohibits false transmission of caller identification information.

Federal Communications Commission
A company has sought a declaratory ruling from the FCC regarding the legality of resumes faxed by a third party on behalf of individual job applicants to “help wanted” postings that requested faxed resumes. C.G. Docket No. 02-278.

Comment: There is little guidance from the FCC or court decisions regarding prerecorded and live telephone calls, faxes, texts or e-mails regarding “help wanted” ads or employment offers. It is without question that if a fee is charged to apply for a job, telephone calls, texts, and faxes would be regulated as telephone solicitations, but if no fee is charged, the transmissions likely are not telephone solicitations subject to the more restrictive TCPA rules.  Note, however, that the TCPA’s rules preventing calls to cell phones without the prior express consent of the recipients (also applicable to texts) apply to all prerecorded or predictive dialed communications, regardless of whether they are telephone solicitations, or not.  Please contact me if you would like an opinion regarding a specific type of transmission related to employment offers.

Another company has sought a declaratory ruling from the FCC regarding use of prerecorded messages used in the course of connecting collect callers to wireless telephones.

Comment: Given the current TCPA class action atmosphere, I would not recommend that any company use prerecorded messages delivered to wireless numbers absent the prior express consent of the recipient or an emergency.

Federal Trade Commission
Several clients have recently received e-mails with a subject line “NOTIFICATION OF CONSUMER COMPLAINT” purportedly from the FTC.  These e-mails are NOT from the FTC and likely are a phishing or other fraud attempt.  Please disregard and delete these e-mails.  Actual consumer complaints from the FTC are accompanied by a cover letter and are sent in the U.S. mail.

The FTC has ordered nine data brokering companies to provide it information on how they collect and use data about consumers.  Included in the items requested are a list and description of all products and services the company offers using personal data, the sources of that data, procedures used to generate such data, and whether the data is acquired with the consent of the consumer.

Illinois
An Illinois court has certified a class of recipients of allegedly illegal faxes.  Saf-T-Gard International Inc. v. Vanguard Energy Services, LLC.  The plaintiff received faxes from the defendant and did not have a prior business relationship with the sender.  Additionally, the fax did not contain the required opt-out information.  The court noted that failure to include opt-out language, alone, might not be actionable.  That is, the plaintiff may not have a claim for failure to comply with the FCC’s regulation requiring disclosures in the fax.

Minnesota
A Minnesota court has dismissed a suit against a debt collector which alleged that voicemail messages left on her cell phone violated the FDCPA and the TCPA.  Zortman v. J.C. Christensen & Associates, Inc.  The court found that the messages did not violate the FDCPA because they did not convey protected information to third parties.  The plaintiff had alleged that she loaned her phone to her children and that the communications were therefore illegal communications by a debt collector with third parties.

Mississippi
The Fifth Circuit Court of Appeals has upheld a trial court’s ruling that Mississippi’s caller ID anti-spoofing act was preempted by federal law.  Teltech Systems, Inc. v. Phil Bryant.  The Mississippi law was more restrictive than federal caller ID restrictions.  The court examined the FCC’s previous rulings regarding TCPA preemption and found that although the TCPA did not expressly preempt Mississippi’s law, the law was preempted because it conflicted with the objectives and scope of the federal caller ID restrictions.

Comment: The court noted that the TCPA’s preemption language is confusing and ambiguous.  This conclusion has been well known for years.

A bill has been proposed in Mississippi (MS HB 48) which would automatically bar telemarketers from contacting consumers if they did not answer a telephone solicitation or did not return a call in response to a prior solicitation.  The bill also prohibits false transmission of caller identification information.

Comment: This is an obviously draconian proposal which would bar calls if the consumer failed to answer any telephone solicitation for any purpose, e.g., the consumer was not home.  It is obviously just as unconstitutional as it would bar vast quantities of speech with absolutely no affirmative indication from the consumer that the speech was not welcomed.

New Jersey
A New Jersey court has allowed a class action alleging unsolicited fax advertisements to continue.  Goodrich Management Corporation v. Afgo Mechanical Services.  Although state law prohibits private TCPA class actions, the court noted that federal law controlled this case and defendants’ motion to deny class certification.

New York
A bill is being considered by the New York Assembly (NY AB 1795) which would ban cramming. The term “cramming” is defined as “inclusion of charges on an invoice or bill from a telephone corporation at the request of a third party which were not authorized by the customer.”

Comment: Cramming is already prohibited by federal law.

The New York Assembly is considering a bill which would add fax numbers to the state “do-not-call” list (NY AB 2125).  Unsolicited faxes are already prohibited by federal law.

Utah
The state of Utah has adopted new forms for its telemarketing registration.  The old forms will no longer be accepted, effective immediately.

Wisconsin
An appeals court in Wisconsin affirmed certification of a class of persons who allegedly received illegal faxes which violated the TCPA.  Reliable Money Order, Inc. v. McKnight Sales Co., Inc. The court ruled that despite ethical breaches by the plaintiffs’ attorneys, the class was still properly certified.

Comment: The suit involved attorneys who have filed “scores” of TCPA class actions and, although this appellate court did not disqualify them, the evidence showing unethical activity could be valuable to defendants in other cases.

Commentary

The Lack of FCC Guidance Regarding Job Offers Via Fax or Email