JANUARY 2018

Federal Trade Commission

The Federal Trade Commission (“FTC”) has settled charges against a Utah woman, Jamie L. White, who allegedly violated the Telemarketing Sales Rule (“TSR”).  Under the terms of the settlement she is banned from telemarketing.  Charges were first brought December 6, 2017 and alleged she provided payment processing services to fraudulent telemarketing operations.

The FTC brought these charges under its standards for “accomplice liability” despite the fact that White made no calls herself, nor did any company she owned make calls.  A business or individual can be liable under the standard if it knows, has reason to know, or consciously avoids knowing of wrongdoing by its business partners.  For example, if a contractor requires compliance with the TSR and other law but a business has knowledge that its partner is ignoring that provision and continues the business relationship, it can be held liable even if it did not violate the TSR directly.  The FTC can use this standard to pursue domestic companies working with international companies, companies with assets versus companies without assets, etc.

California

A court has certified a class of fax recipients in a California class action brought against Allstate Insurance Company.  Etter v. All State Insurance Co.  Allstate’s independent contractor sent fax advertisements using numbers obtained from online sources.  More than 10,000 people received the faxes meaning damages under the TCPA could reach $5 to $15 million.

Florida

A bill has been proposed in the Florida Senate (SB 962) which would allow telecommunications providers in the state to block calls from specific numbers identified by wireless subscribers or other numbers likely to be used in a fraudulent manner.

A bill has been proposed in the Florida Senate (SB 568) which would revise the definition of “telephonic sales call” to include voicemail transmissions.

Comment: Some vendors of direct-to-voicemail services petitioned the FCC to rule that those communications were not “telephone calls” as defined in the TCPA.  When their request received bad press and negative comments, they withdrew the request.  This state bill appears to be a response to the direct-to-voicemail vendors’ request.  A similar bill has been proposed in the Florida House (HB 315).

In my opinion, direct-to-voicemail communications are a “telephone calls” as defined by the TCPA, and I never saw a convincing legal opinion otherwise. 

Indiana

An Indiana bill (HB 1102) would define “executive officer” for purposes of Indiana’s telephone solicitation law and provide that the executive officer of a corporation that violates the law commits a separate deceptive act.

Comment: The FTC has been very aggressive with regard to individual liability for corporate acts under the TSR.  There is, however, a strong body of law protecting corporate officers from individual liability absent egregious circumstances.  This bill would codify state attorneys general and the FTC’s traditional surge of suing owners, officers, and corporate actors in these sorts of cases.

Michigan

A court has stayed a TCPA claim brought by a TCPA class action attorney in his individual status as a plaintiff awaiting the D.C. Circuit’s decision regarding what constitutes an automatic telephone dialing system (“ATDS”).  Lyngklip v. iCapital.Cash.

Comment: Lyngklip, the plaintiff, is represented by an attorney who works in his firm.  The potential conflict of interest is important, especially with regard to other cases where Lyngklip may attempt to act as class counsel for other plaintiffs.

Mississippi

A Mississippi bill has been introduced in the Mississippi House (HB 280) which would increase penalties for violations of Mississippi’s Telephone Solicitation Act to an amount not to exceed $100,000 per violation.

Comment: The previous maximum penalty was $5,000 per violation.

A bill has been proposed in Mississippi (HB 197) which would add calls made for political purposes to those covered by Mississippi’s Telephone Solicitation Act.  Political calls would then be subject to the state’s no-call list.

Comment: No-call lists were upheld by courts using commercial speech rules.  If political calls were banned by the no-call list, they would be subject to a higher standard of constitutional scrutiny applicable to fully protected speech, and likely would be struck down.  This bill, if passed into law, is likely unconstitutional.

New York

A New York Assembly bill (SB 3152) would increase the potential penalty for violation of New York’s telemarketing statute from $11,000 to $20,000 per violation.

A magistrate judge has recommended that a TCPA class action be dismissed and sanctions be awarded against plaintiff’s attorney, Todd C. Bank.  McCabe v. Lifetime Entertainment Serv.  Lifetime had called Time Warner customers to notify them that the channel number was changing.  An earlier judge had dismissed an identical case because the list of telephone numbers called could not be located.  The Second Circuit Court of Appeals denied Bank’s appeal.  On the same day of the appeal, he refiled and admitted in conference that the allegations were the same as the previous complaint.  The court ruled that the statute of limitations barred the second suit and awarded Lifetime $5,000 in sanctions against Bank for bringing the second, frivolous complaint.