March 2014

FTC

The FTC has settled a claim against a marketer of home security systems after it alleged that the company violated the national “do-not-call” list.  FTC v. Versatile Marketing Solutions.  The company purchased leads from lead generators who claimed that consumers had given permission to contact them but the consumer had not actually provided express written signed consent.  The company also used prerecorded calls and fake survey calls to market its services.

A group of marketers has settled claims that they sent text messages to consumers with false gift card offers directing recipients to deceptive websites.  FTC v. CPATank, et al.  Text messages are barred absent the prior express consent of the recipient.

California

A California consumer has won a judgment against a former school board candidate who sent a prerecorded call to him during an election campaign.  The consumer received the call on his cell phone despite having never provided his number to the caller (which would constitute express consent), and the call, therefore, violated the TCPA.  Arkow v. Trunkey.

A California court has dismissed a claim against a debt collector alleging violation of the TCPA for calling a cell phone with an ATDS.  The Court ruled that an ATDS requires the equipment use a random or sequential number generator or it is not an ATDS.  The Court, therefore, dismissed the claim.  Stockwell v. Credit Management.

Comment: Most other courts have ruled that the ATDS definition “to store or produce numbers to be called using a random or sequential number generator” means that using a random or sequential number generator modifies the word “produce” and not both the words “store” and “produce” and, therefore, do not require that the system have a random or sequential number generator for it to be an ATDS.  This case may be of some value, however, in California. 

 

Colorado

A Colorado court has refused to reject the FCC’s definitions of “prior express consent” with regard to calls to cell phones.  Chaves v. The Advantage Group.  The plaintiff urged the Court to reject the FCC’s finding that persons who knowingly release their phone numbers have, in effect, given their invitation or permission to be called at the number which they have given.

Delaware

A Delaware court has ruled that the TCPA can be used to sue individuals if they developed or authorized policies or procedures that led to corporate violations.  McGee v. Halsted Financial Services.  It also ruled that damages for the TCPA were per call, not per violation.

New York

A New York court has ruled that a consumer had a cause of action against a debt collection who called her cell phone believing it to be owned by a different consumer.  Echevarri v. Diversified Consultants, Inc.  The Court placed great weight on the fact that the consumer contacted the debt collector on the first day that she received calls and advised that it had the wrong number yet the debt collector continued to call the number.

Ohio

An Ohio judge has dismissed a claim against several defendants, including a telephone company, which alleged that they assisted in violating the TCPA and, therefore, were vicariously liable for the violations.  Lucas v. Telemarketer.  The judge ruled that the defendants did not actually initiate the calls and, therefore, could not be liable for alleged TCPA violations caused by the calls.

Pennsylvania

A Pennsylvania court has ruled that Yahoo did not violate the TCPA when it sent text messages to a consumer’s cell phone number.  The cell phone number had previously been held by someone who opted into Yahoo’s texts.  Bill H. Dominguez v. Yahoo, Inc.  The Court reviewed Yahoo’s text program and held that it did not have the capacity to randomly or sequentially generate numbers.  The Court ruled that because it lacked this capacity, it was not an ATDS.

Comment: This is a very narrow ruling regarding the definition of ATDS, finding that an ATDS has to randomly or sequentially generate numbers for the TCPA to apply.  Most other courts have read the language “store or produce” to allow storage of other imported numbers, not randomly or sequentially generated, to qualify equipment as an ATDS.

 A Pennsylvania court has held that an offer of judgment made to an individual in a purported class action did not make the class action moot. 

Comment: There is a split among the circuits regarding the effectiveness of an offer of judgment to disqualify an individual as a class representative.  If you are sued in a TCPA class action, you should review which circuits allow an offer of judgment as it can be an effective means to end the case.

Tennessee

A bill has been proposed in the Tennessee Senate (SB 1916) which would require any business with a call center in the state to notify the Commissioner of Labor and Workforce Development prior to relocating a call center to a foreign company.  The bill would provide for penalties not to exceed $10,000 for each day of violation. 

West Virginia

A West Virginia court has refused to dismiss a case brought by an individual alleging violation of the national “do-not-call” list.  Mey v. Monitronics International, Inc.  The companies did not actually call the plaintiff, but argued that they should not be responsible for calls placed by an “authorized dealer” of their products.