March 2015

FCC

The FCC has issued a forfeiture order against an Alabama company in the amount of $342,000 for delivering 43 unsolicited prerecorded advertising messages to 33 consumers.  In the matter of: Security First of Alabama, LLC.  The forfeiture order follows a 2011 notice against the company.  The company did not respond to the first notice of apparent liability.

Comment: Ignoring correspondence from the FCC or other regulator is perhaps the worst choice when determining how to respond to such communications.

A bank has requested clarification from the FCC regarding prior express consent, specifically asking whether a person who advertises his or her telephone number has expressly consented to receive calls at that number.  Comments were due by March 15, 2015.  Petition of Citizens Bank, N.A., CG Docket No. 02-278 (filed January 16, 2015).

The FCC has now received 15 petitions seeking waiver of the fax disclosure rules required by the Telephone Consumer Protection Act (“TCPA”).  Several companies omitted the fax disclosures on expressly requested faxes, and were then sued by the recipients of such faxes.  The FCC granted these companies relief if they seek a waiver of the disclosure requirement.

The FCC has issued a forfeiture against American West Advertising, LLC for sending four unsolicited prerecorded advertising messages to consumers.  The FCC assessed a penalty at $18,000 for the four calls.

FTC

The FTC has fined seven companies $1.2 million for “cramming” violations.  The companies admitted to billing consumers for services without their proper authorization.  They will pay a penalty and must adopt the client’s plans designed to prevent future violations.  One company, Back Office Support Systems, Inc., manages many activities for each of the long-distance company defendants.

The FTC has filed an action against a company which allegedly offered debt relief services but provided no actual services to those consumers.  FTC v. Payday Support Center, LLC.  The FTC alleged that telemarketing calls associated with the program implied a relationship between the caller and the consumer that did not exist.

The FTC has charged Direct TV with misleading customers about costs of satellite television contracts and cancellation fees.  The FTC’s complaint alleges that telephonic sales presentations did not include disclosures regarding the monthly costs of subscriptions to consumers.

Comment: The Telemarketing Sales Rule (“TSR”) requires that sellers clearly and conspicuously disclose all material terms of the transaction before obtaining billing information.

The FTC has also announced a new contest to solicit solutions to illegal prerecorded telephone calls.

California

The U.S. Chamber of Commerce has appealed to the United States Supreme Court regarding the issue of whether making a full settlement offer to an individual plaintiff makes a class action brought under the TCPA moot.  In the case, Gomez v. Campbell-Ewald, the U.S. Navy sent a recruiting text and a recipient filed a putative class action against the sender of the text. 

Georgia

A purported class action has been filed against Wal-Mart Stores alleging violations to the TCPA.  Dubanoski v. Wal-Mart Stores, Inc.  The plaintiff alleges he received calls regarding a Wal-Mart credit card he never had. 

Comment: It is very important that your database of telephone numbers be current because someone who has expressly consented to receive calls at a given number, but then loses control of that number, cannot provide express consent for the later owner of the number.

Illinois

A federal judge has approved a payment of more than $15 million in plaintiff’s attorneys’ fees in a class action settlement brought against Capital One alleging violations of the TCPA during debt collection calls to consumers’ cell phones.

Pennsylvania

A bill has been proposed in the Pennsylvania Senate (SB 387) which would establish a state “do-not-call” list for political prerecorded calls.  The bill would create a separate no-call list from the commercial list already in use.

Wisconsin

A court has granted a stay in a TCPA case against a debt collector based on the FCC’s potential efforts to give clarity to TCPA issues.  The case Gensel v. Performant Technologies involved a consumer who received debt collection calls for a previous subscriber of the telephone number.

Comment: The ACA has asked the FCC for clarification regarding four issues: 1) “Confirm that not all predictive dialers are categorically automatic telephone dialing systems (‘ATDS’ or ‘autodialers’); 2) Confirm that ‘capacity’ under the TCPA means present ability [to store, produce or dial phone numbers]; 3) Clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred; and 4) Establish a safe harbor for autodialed ‘wrong number’ non-telemarketing calls to wireless numbers.”