JULY 2016

FCC

On July 5, 2016, the FCC exempted congressional “tele town halls” from the TCPA restrictions on calls to cell phones and prerecorded voice calls.  The FCC stated that “federal, state, and local governments are not persons as that term is used in the TCPA.”  The FCC further ruled that the term does not include a contractor for a government agency working on its behalf. The ruling is available at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0706/FCC-16-72A1.pdf

Once again, the FCC has created a piece meal exemption to the TCPA’s restrictions.  Exempting categories of speakers is “content-based” and subjects the entire statute to “strict scrutiny” under the First Amendment because other speakers are not exempt. 

FTC

A group of lead generators has agreed to pay $258,000 to the state of Florida and the FTC and conduct due diligence before selling leads to any new customer.  FTC v. PC Cleaner, et al.  The defendants allegedly created software which caused consumers who downloaded it to call the business’ clients who then upsold computer technical support to those consumers.

Second Circuit Court of Appeals

An appellate court has affirmed a trial ruling that a debt collector was liable for 17 calls placed to an individual in violation of the TCPA.  Sterling v. Mercantile Adjustment Bureau.  The debt collect called Sterling to collect on a debt owed by the previous owner of the telephone number.  The Court ruled the debt collector was liable for those calls and had “constructive knowledge” of the reassignment after the first call to Sterling.

Seventh Circuit Court of Appeals

A judge has ruled that class action plaintiffs are not entitled to fees based on the total fund available to claimants, but on the actual claims made by class members.  In the case, a group of accountants sued a lawyer who sent them 8,430 faxes in violation of the TCPA.  The lawsuit settled for $4.2 million.  The plaintiffs’ attorneys were awarded $1.4 million, but any money unclaimed from the total pool was to be refunded to the defendant.  The appellate court ruled that the fee was too high “if a given recipient cannot be located, or spurns the money, counsel are not entitled to be paid for that fax.”  Turza v. Holtzman.

Florida

A Florida court has refused to stay a TCPA case brought against Bright House Networks.  Sliwa v. Bright House Networks.  Bright House argued that the legal challenge in the D.C. Circuit to the FCC’s definition of “ATDS” meant the plaintiff’s case should not proceed until a ruling is made.

Massachusetts

A Massachusetts court ruled that an unanswered telephone call constituted a “communication” and therefore could violate the state’s prohibition on more than two communications to a debtor from a collector in each seven-day period.

Comment: It seems a stretch to claim an unanswered telephone call is a “communication.”

New Jersey

A bill has been proposed in the New Jersey Senate (SB 2461) which would require the Division of Consumer Affairs to establish a taskforce to study technology or other methods to eliminate telemarketing harassment.

Oklahoma

An Oklahoman has been sanctioned by a court for filing a frivolous TCPA action.  Salman v. CRST Expedited, Inc.  The Court ordered Salman to pay restitution to the defendants and speak to students at the University of Tulsa – College of Law about the dangers of filing lawsuits without proper review from experienced attorneys.

Tennessee

A Tennessee court has dismissed a claim alleging violation of the TCPA against Dish Network.  Huffman v. Dish Network.  The Court noted the plaintiff could not show any phone record or other evidence showing calls from defendant and dismissed the case.