July 2012

In this issue:

  • The SEC has published rules prohibiting deceptive or abusive telemarketing acts or practices for companies regulated by the Commission. The rules are substantially similar to the FTC’s Telemarketing Sales Rule. 77 Fed. Reg. 26343.
  • A Nevada court has dismissed a TCPA case filed against a debt collector because the plaintiff failed to allege that the defendant used the automatic telephone dialing system illegally. Harris v. American General Financial Services, Inc.
  • A Florida court has allowed a TCPA action to continue when the plaintiff alleged that a debt collector sent prerecorded messages to a person who did not own the number dialed. Zyburo v. NCSPlus, Inc. It is very important that you use accurate databases for calling to prevent this sort of issue.

Securities and Exchange Commission
The SEC has published rules prohibiting deceptive or abusive telemarketing acts or practices for companies regulated by the Commission.  The rules are substantially similar to the FTC’s Telemarketing Sales Rule.  77 Fed. Reg. 26343.

Federal Communications Commission
The Seventh Circuit Court of Appeals has ruled that a consumer who was called on her cell with a prerecorded message could sue under the TCPA even though the number was previously owned by the original debtor.  Soppet v. Enhanced Recovery Service.  The district court certified the class allowing it to proceed and the appellate court upheld the ruling.  The court noted the FCC’s standard for “express consent” but held that express consent given by the prior debtor did not apply to the new owner of the number.

The FCC has published a request for comments in regard to its proposed database for public safety access telephone numbers.  Comments are due by July 23, 2012, and can be filed electronically.

Comment: Most calls to public safety numbers are already illegal under the TCPA.  This new list may give callers better access to a source of such numbers, but it remains to be seen how expensive the list will be.  It is applicable to all users of automatic telephone dialing systems, i.e. predictive dialers.

Federal Trade Commission
The FTC has sued two companies and their owners alleging misrepresentation with regard to services represented to assist consumers with auto loans in default.  Federal Trade Commission v. Hope for Car Owners, LLC; Federal Trade Commission v. Vehicle Loan Modification et al.

The FTC has substantially revised its document “Complying with the Telemarketing Sales Rule” available at the-dma.org/telemarketing/tsr_compliance_guide.pdf.  This is an excellent resource provided by the Commission with specific examples of legal and illegal activity.  This document will often provide an answer to a question the Regulations may be unclear on.

California
A class action has been filed in the Central District of California alleging that Citibank violated the TCPA by contacting consumers on their cellular telephones using an automatic telephone dialing system or an artificial prerecorded voice without prior express consent.  Baker et al. v. Citibank NA.  The plaintiff alleged that she used a Citibank credit card but never provided her cellular telephone number to Citibank either on the original application or at a later time.  She alleges receiving seven to eight prerecorded calls on her cell phone beginning in 2011.

Comment: You should review how telephone numbers in your database were obtained and if you can’t verify the source of a given number, ensure compliance with 47 USCS § 227(b) by “scrubbing” against the cell phone database and otherwise implementing actions to comply with the TCPA and other legal provisions.

Connecticut
Connecticut has passed a revision to its telemarketing statute prohibiting any intentional transmission of any inaccurate or misleading caller identification information. Federal law already bans this practice.

Florida
A Florida court has allowed a TCPA action to continue when the plaintiff alleged that a debt collector sent prerecorded messages to a person who did not own the number dialed.  Zyburo v. NCSPlus, Inc. It is very important that you use accurate databases for calling to prevent this sort of issue.

A TCPA action in Florida has been allowed to continue by the state appellate court despite the defendants’ offer of a “consent judgment” to the plaintiff.  Some defendants have offered plaintiffs their full demand in an attempt to moot a class action, but this court rejected that argument. Kaner v. Schiffman.

Maine
The Maine Transient Seller Application requires individuals to disclose whether they have been convicted of “any crime.”  By a telephone conversation, Marlene McFadden, of the Department of Professional Licensing, confirmed that the term is meant to include misdemeanors and any criminal convictions, not just felonies or more serious offenses.

Maryland
A plaintiff who alleged that he suffered “actual damages” from inbound calls sued a debt collector alleging violation of state and federal law.  Lynn v. Monarch Recovery Management.  The debt collector refused to provide answers to plaintiff’s discovery request and in a rare exception to the normal rule that each side pay its own attorney’s fees, the court awarded the plaintiff’s attorney’s fees to be paid by the defendant.

Mississippi
The Mississippi Public Service Commission has fined a California telemarketer $945,000 for alleged violations of the state “do-not-call” list.  The company sold a variety of items including automobile warranties, home security systems, and credit interest rate reductions.  Mississippi v. Roy M. Cox, Jr., et al.  Cox and his companies have also been sued by the FTC. Mississippi is one of the more active states with regard to enforcement of its state “do-not-call” list.

Nebraska
The Nebraska Public Service Commission is proposing changes in its rules for automatic dialing announcing devices.  The rules renumber earlier rules and require proposed scripts for telephone solicitations or unsolicited advertisements to be filed with the Commission.  The new rule also requires callers to honor businesses’ “do-not-call” requests.  Previously, the rule had been limited to honoring residential “do-not-call” requests.  Finally, the rule provides that a person contracting with a third party to connect an automatic dialing announcing device is liable for the actions of that third party.

Nevada
A Nevada court has dismissed a TCPA case filed against a debt collector because the plaintiff failed to allege that the defendant used the automatic telephone dialing system illegally.  Harris v. American General Financial Services, Inc.

New Jersey
A United States district court in New Jersey has ruled that five separate class actions in New Jersey should not be combined.  Landsman & Funk v. Skinder-Strauss Associates et al.  A previous appellate court ruling had ordered the trial court to determine, in each case, what state laws applied to the claims.  The trial court ruled that each of the suits involved different sorts of claims and thus the claims could not be consolidated.