JUNE 2018

Federal Trade Commission

A company purportedly offering student loan debt relief has settled charges brought by the Federal Trade Commission (“FTC”) alleging fraud and violation of the national “do-not-call” registry.  FTC v. Student Debt Relief Group.  The company was forced to turn over more than $2.3 million in assets to the FTC.

The FTC has filed a lawsuit against two companies and their owners who allegedly sent billions of illegal prerecorded calls in violation of the Telemarketing Sales Rule (“TSR”).  FTC v. James Christiano, Net.Solutions, Inc., et al.  The FTC alleged the company used spoofed called IDs among other violations of the TSR.

Federal Communications Commission

The Federal Communications Commission (“FCC”) has made a declaratory ruling and notice of proposed rulemaking regarding toll-free texting.  The regulations provide that a text messaging provider may not text enable a toll-free number without obtaining authorization from the subscriber.  Such authorization can be revoked at any time.

Ninth Circuit

The Ninth Circuit Court of Appeals has refused to overturn certification of a class of persons who received faxes from Allstate Insurance.  Etter v. Allstate Insurance Co.  Etter received a single unsolicited fax advertisement which did not contain opt-out notice language and which he did not expressly request.  The trial court had ruled that whether a given recipient had consented to the fax could be proved on a class-wide basis, and had therefore certified the class.

Florida

A Florida court has refused to dismiss a TCPA class action based on allegedly illegal faxes.  The defendant argued that a single fax did not cause sufficient injury for the plaintiff to have standing under the constitution, but the court disagreed.  Bobo’s Drugs v. Fagron, Inc.

Georgia

A Georgia court has ruled that a system which requires human intervention to dial a call is not an automatic telephone dialing system (“ATDS”) under FCC rulings and the D.C. Circuit’s ruling in ACA Int’l v. FCCMaddox v. CBE Group, Inc.  The court noted that the law does not require that a human dial all ten digits.  “The focus is on whether the system can automatically dial a phone number, not whether the system makes it easier for a person to dial the number.”  The court therefore concluded the system was not an ATDS.

New Hampshire

A New Hampshire judge denied a Telephone Consumer Protection Act (“TCPA”) plaintiff’s request to certify a class of fax recipients.  Menachem Raitport, et al. v. Harbour Capital Corp.  The court adopted the D.C. Circuit’s opinion in Bais Yaakov of Spring Valley v. FCC that solicited faxes do not need to include the TCPA’s disclosures.  The judge therefore denied plaintiff’s request to certify the class.

New York

Although New York exempts entities which have a certificate to do business in the state or are incorporated in the state from its telemarketing fees and bonds, it does require registration with no fee for entities which meet that exemption.  Recently, state regulators have become more aggressive regarding the no fee registration and information they require to process it.

Comment: If you would like to review your exemption status in New York or other states, please contact me.

A New York court has adopted the D.C. Circuit’s ruling in Bais Yaakov of Spring Valley v. FCC that the FCC could not require disclosures on solicited faxes.  The court noted that the D.C. case was a consolidated petition for review and therefore binding on other courts outside the District of Columbia.

South Carolina

A new law has gone into effect in South Carolina that involves the use of local area code numbers and caller IDs.  The new requirement prohibits the use of a South Carolina area code to be projected by the caller unless the caller is physically located in the state.  The law provides no exemptions.  See https://www.scstatehouse.gov/sess122_2017-2018/bills/4628.htm.