JULY 2017

Federal Communications Commission

Petitioner All About the Message, LLC, which sought a declaratory ruling on the use of straight to voicemail technology, withdrew its petition on June 20, 2017.

Comment: The withdrawal was made without comment.  Press coverage was negative, however.

An investigation into supposed consumer comments on the Federal Communications Commission’s (“FCC”) net neutrality proposal showed that at least 27 comments were the result of stolen identity.  Some comments in support of telecom companies were forged.

Comment: I have reviewed many public FCC comments on Telephone Consumer Protection Act (“TCPA”) proposals through the years, and it is usually easy to determine which are serious and which are not.  However, if the public or “man on the street” comments have been forged, it could give the FCC impression of public support of a position which does not exist.

Federal Trade Commission

The Federal Trade Commission (“FTC”) has announced an intent to conduct a study of notice required when class actions are settled.  See https://www.ftc.gov/system/files/documents/federal_register_notices/2017/07/p024210_class_action_notice_study_30-day_frn.pdf.  Comments will be received for 30 days after publication in the Federal Register but the actual due date has not been set.  The agency has said it intends to study how class action notices can be made more effective.

Comment: Response rates to class action settlement notices are often very low, probably because the benefits offered to class members are low.  The fees for plaintiff’s attorneys, however, are not low, and class actions under the TCPA continue to be filed at high rates.

The FTC has settled charges brought by the FTC alleging a company obtained consumer financial information then sold these “leads” improperly.  FTC v. Blue Global Media, LLC, et al. (D. Ariz. July 5, 2017).  The FTC also alleged the companies did not keep this data in a secure way.

The FTC has announced an intent to cooperate with the FCC regarding call blocking services offered by telecom providers to consumers.

Third Circuit

An appellate court has reversed an earlier ruling dismissing a TCPA class action based on a single call the plaintiff received on her cell phone.  Susinno v. Workout World (3d Cir. July 10, 2017).  Workout World had claimed that the single unanswered call did not allege harm sufficient that the plaintiff could sue, but the appellate court disagreed.

Comment: This is not a good case for TCPA defendants.

The Third Circuit Court of Appeals has affirmed a $34,500 TCPA judgment against a debt collector who called the plaintiff 69 times to collect a $25 medical debt.  Although the plaintiff provided his number to the hospital, the Court ruled that did not mean he proved express consent to be called by the radiology firm that provided him medical service or its debt collector.  Daubert v. NRA Group, LLC (3d Cir. July 3, 2017).

Comment: This is at least the second case ruling that a medical service provider at a hospital is not the same as the hospital when it comes to prior express consent.  Any entity using an ATDS to call cell phones must carefully review the provenance of telephone numbers to ensure that all calls are placed with “prior express consent” to the specific caller.  If that provenance cannot be verified, the caller should suppress cell phone numbers, or use a non-ATDS system to make the calls.

California

A California court has dismissed a TCPA claim brought against a debt collector who called the plaintiff’s mother seeking to collect a debt he owed.  Caruso v. Merchants Credit Ass’n (S.D. Cal. July 11, 2017).  The court ruled he did not have standing to sue for calls to his mother’s phone.

Florida

A Florida court has rejected a TCPA class action settlement which provided for attorney’s fee of 33 percent of the $3.5 million settlement fund.  JWD Auto, Inc. v. DJM Advisory Group (M.D. Fla. July 6, 2017).  The court ruled that 20 to 25 percent was the benchmark and that it would not approve a fee higher than this amount.

Massachusetts

A bill has been proposed in the Massachusetts House (HB 137) which would allow businesses to add their names to the state “do-not-call” list.

Comment: The federal “do-not-call” list was ruled to be constitutional only because it was designed to protect residential privacy.  Businesses do not possess residential privacy rights, and inclusion of businesses in the Massachusetts state “do-not-call” list would call its constitutionality into question.

Ohio

An Ohio court has dismissed a claim that a business violated the TCPA when its products were advertised in faxes sent to plaintiff by a third company.  There was no established link between the sender and the business whose products were advertised.  ARcare, Inc. v. Centor U.S. Holdings, Inc. (N.D. Ohio July 18, 2017).

Comment: The judge noted that, if there was liability in such a circumstance, any sender could advertise anything and impose TCPA liability on the producer of those products.

Pennsylvania

A Pennsylvania court has ruled in favor of a collection bureau which called a consumer on his VoIP line.  Klein v. Commerce Energy, Inc. (W.D. Pa. June 21, 2017).  The court ruled that Klein was not charged for each inbound call, and the inbound calls’ effect on his “pool” of minutes did not mean that he was charged for each call such that the cell phone call ban provision of the TCPA applied.

Comment: Because it is impossible for a caller to know if a number is VoIP or not, and the nature of the recipient’s VoIP plan, i.e. charged for an individual call or not, the applicability of the TCPA cell phone call ban to VoIP calls is particularly troublesome and plaintiffs have abused this provision in many situations sending demand letters and filing suit.  This case helps in some respects, but still does not fix the problem that VoIP numbers cannot be identified by the caller prior to calling the number.

The Pennsylvania House has passed a bill (HB 105) and referred it to the Senate which would amend the state’s Telemarketer Registration Act.  The bill would specifically add “robocalls” to the definition of outbound telephone calls subject to the state’s “do-not-call” list requirements.  It would also ban making telephone solicitation calls on legal holidays.  Finally, it would require an opt-out disclosure in all prerecorded sales calls.