As of January 13, 2015, eleven petitions have been filed seeking waiver of the FCC’s fax disclosure rules as previously discussed in this newsletter. The petitioners seek retroactive waivers of the opt-out notice requirements and fax ads they sent to persons who expressly requested the faxes.
The FCC has also adopted an exemption to the TCPA’s ATDS restrictions for package delivery notifications sent by a package carrier to telephone numbers for the package recipient (which may or may not have been provided by the package recipient).
Comment: Again, this shows the potential that the FCC will issue orders to reasonable businesses using telephones for reasonable consumer-friendly purposes. It also shows another “content-based” exemption to the TCPA’s ATDS restrictions. “Content-based” restrictions of speech must meet a stronger test if challenged on free speech grounds, so this exemption may mean the TCPA ATDS restrictions will ultimately be struck down as unconstitutional.
The FTC has filed a staff comment with the FCC regarding its opinion about “call blocking technology.” The national association of attorneys general asked the FCC whether there are any legal or regulatory prohibitions that prevent telephone carriers from offering consumers call blocking technology. The FTC’s opinion was that there are no such legal barriers.
Comment: Many courts have affirmed the right to be left alone or the right to privacy. These barriers, however, must be instituted by the consumer rather than using content-based restrictions of speech applied by a regulation or an agency.
A Florida court has denied in part and granted in part a Motion to Dismiss brought in a purported TCPA action against a debt collector. The debt collector called the plaintiff’s cellular telephone numerous times using an ATDS. The court ruled that plaintiff sufficiently pled that she had been called without her express consent, but denied state law claims that these actions were unfair and deceptive. Ferrara v. LCS Financial Services Corp.
A Florida court has denied a Motion to Dismiss a case brought in a TCPA action by an individual against a law firm. Gesten v. Stewart Law Group. The calls were an attempt to collect a debt from plaintiff’s husband and used a prerecorded message. Plaintiff unsuccessfully claimed in response to defendant’s argument that only the intended recipient of a call could sue under the TCPA.
Comment: This defense argument, i.e. that only the intended recipient of a call can sue under the TCPA, has been rejected in most courts.
Philip Charvat has served as a TCPA class representative and private plaintiff in many cases in the past decade. He recently challenged a subpoena brought against him seeking a deposition from an earlier TCPA class case. Charvat v. Travel Services. The court ordered the defendant to obtain information from publicly-available sources prior to subpoenaing third parties.
A bill has been pre-filed in the Indiana Senate (SB 227) which would remove the exemptions to the state “do-not-call” list for calls by charities, licensed real estate brokers, insurance companies, or newspapers.
Comment: When the Indiana “do-not-call” list was passed, a paper published an editorial supporting the exemption for newspapers claiming the legislature would not be wise to pick fights with entities which buy ink by the barrel. Perhaps the power of print media has declined in the past decade. It should also be noted that calls by charities are currently exempt from the Indiana “do-not-call” list, but calls soliciting a donation “on behalf of,” i.e. by a professional fundraiser, are not exempt.
Missouri’s attorney general has filed suit against a construction company in St. Louis arguing that it violated Missouri’s “do-not-call” list. Coster v. Abelard Construction.
Comment: Missouri is active with regard to enforcement of its “do-not-call” list which is separate from the national “do-not-call” list, and does not have the same exemptions found in the federal law.
Missouri’s attorney general has released a report of his 2014 enforcement of the law. In 2014 the attorney general’s office filed 20 lawsuits resulting in fines and penalties of approximately $270,000.
Missouri has filed suit against a California seller of home security systems alleging violation of Missouri and federal telemarketing law. Koster v. First Pacific Marketing, LLC. The calls were allegedly prerecorded and made a claim that the FBI had reported increased break-ins in the recipients’ neighborhoods.
Comment: In addition to actively enforcing Missouri’s “do-not-call” list, claims of fraud reception, calls potentially making claims which are fraudulent or deceptive are much more likely to result in regulatory enforcement.