MARCH 2017

Federal Communications Commission (“FCC”)

The FCC has issued a consumer advisory regarding a fraudulent telemarketing campaign which apparently seeks to get consumers to say the word “yes” during a call and later use a recording of the response to authorize unwanted charges on the consumer’s telephone or other utility account.

Comment: A “yes” taken out of context certainly is not legally binding and any entity proposing this sort of sales campaign for your business should be avoided.

The FCC has released its plan to allow phone companies and individuals to block certain caller ID numbers either associated with a given caller or which have a very high likelihood of being used maliciously.

Comment: Some caller ID numbers have not yet been assigned, for example, and if used in a call are likely to be fraudulent.  Phone companies will now be allowed to block calls from those numbers.

Federal Trade Commission (“FTC”)

The FTC has reached a settlement with a seller of debt relief services.  FTC v. United Debt Counselors, LLC.  The complaint alleged violations of the FTC Act and the Telemarketing Sales Rule (“TSR”) which included misrepresentations regarding how many consumers successfully complete the program, how long it takes to fully complete the program, and how much money consumers would save.  The settlement involved a payment of $510,000 to the FTC.

The FTC has issued its summary of consumer complaints received in 2016.  Debt collection complaints were the top category followed by imposter scams and identity theft.

The FTC obtained a final order banning an office supply company from telemarketing in the United States or misrepresenting any product or service.  FTC v. Liberty Supply Co. et al.  The order involved more than a $6 million judgment against the defendants, all but approximately $500,000 of which was suspended based on inability to pay.

California

A California court has certified a class action brought by an individual against a solar energy equipment company which allegedly placed telemarketing calls to consumers’ cell phones.  O’Shea v. American Solar Solution, Inc.  The defendant showed no evidence it obtained express consent from the plaintiff.

Florida

A bill has been proposed in Florida (HB 467) which would remove the five-year time limitation for “internal” “do-not-call” requests.

Illinois

An Illinois court has dismissed a purported class action brought by a consumer who alleged he received an illegal text message.  Warciak v. Nikil, Inc.  The defendant created a social network and mobile application called “Down to Lunch” which was designed to allow friends to connect easily and meet spontaneously in person for lunch or other activities.  Warciak alleged he received texts from an individual inviting him to lunch.  The court disagreed stating that users of the app initiate the invitations, not the app company.  The court therefore dismissed the case.

Massachusetts

A bill has been introduced in the Massachusetts House (HB 2828) which would define “robocall telephone solicitation” as a call for the purpose of soliciting goods or services or obtaining a charitable donation which uses a “computerized autodialer” and a “computer delivered” voice or text communication.  All robocalls would be banned to mobile telephones in the state of Massachusetts.

Comment: The ban allows for enforcement by the Attorney General and private persons who have received more than one unsolicited telephone call within a given 12-month period.  Damages would be actual damages or not less than $10,000 in damages for willful or knowing violations.

Michigan

A Michigan court has refused to dismiss a case brought by a consumer who received texts after another person using his number purportedly opted-in to receive them.  Hamza v. Dunhams Athleisure Corporation

Comment: The court directed the parties to take the deposition of the opting-in person “as soon as possible.”  It seems likely to me that if that person had authority to use the number, the case will be dismissed.

New York

A bill has been introduced in the New York General Assembly (AB 6424) which would require disclosure of whether the call is being recorded at the beginning of telemarketing calls.

Comment: Because consumers with telephones from area codes in “two-party consent” states could travel to “one-party consent” states and vice versa, it is our recommendation that you disclose recording or monitoring for all calls.  It is impossible to tell whether a given consumer is in a two-party or a one-party consent state based on the area code of the telephone number called.

Vermont

A bill has been passed in the Vermont Senate (VT SB 72) which would require telemarketers to provide accurate caller ID information including name and telephone number, and where available, the name of the party on whose behalf the call is made.  This bill is likely to pass the House and become law and would include solicitations for sales if made to persons with whom the caller does not have an established business relationship.