May 2014

In this issue:

  • The FCC is considering a petition regarding what liability would result when a number, previously provided to the caller, is reassigned to a new consumer. United Health Care Services, Inc. Petition for Expedited Declaratory Ruling.
  • A judge in Hawaii has dismissed a TCPA case brought by an individual who provided her cell phone number to an airline then later received a text asking if she wished to receive flight information on the cell phone.
  • The state of Wisconsin has repealed its “do-not-call” list law (2013 Senate Bill 155) and, after August 1, 2014, will no longer require purchase of its state “do-not-call” list, which had cost up to $20,000 per year, depending on the number of lines used. After that date, Wisconsin will enforce the federal “do-not-call” list and allow the state’s Department of Agriculture and Trade to share Wisconsin numbers with the FTC if they are not already on the national “do-not-call” registry.

Federal Communications Commission
FCC Commissioner Michael O’Reilly has written a blog post urging the FCC to review petitions for clarity regarding interpretations of the TCPA in the current class action environment.

Comment: I personally have a preemption petition that the FCC has failed to address in more than a decade.

The FCC has issued a citation with a $640,000 forfeiture order against Presidential Who’s Who for allegedly faxing more than 100 illegal advertisements to consumers. The entity had previously received a formal citation from the Commission.

Comment: The FCC cannot fine telephone companies without first issuing a citation. If you receive a citation, you should review and respond. The FCC will rescind a citation if the entity proves it did not violate the law.

The FCC is considering a petition regarding what liability would result when a number, previously provided to the caller, is reassigned to a new consumer. United Health Care Services, Inc. Petition for Expedited Declaratory Ruling.

Comment: Many TCPA actions have been brought by persons who will be assigned a number from an earlier consumer who gave express consent. This petition could protect businesses, which knowingly call those new consumers, from potential massive liability.

Federal Trade Commission
Two companies have settled charges that they misrepresented the security of their mobile apps with regard to sensitive consumer personal information. FTC v. Fandango, et al.

Comment: The FTC generally uses its power to prevent general “unfair trade practices” to force restrictions regarding consumer privacy.

California
A California court has denied certification of a TCPA class because the plaintiff provided his telephone number to the business and thus is not a representative of the class. Ryan v. Jersey Mike’s Franchise.

Connecticut
The Connecticut Senate has passed a bill (SB 209) which adds text messages into the definition of “telephonic sales call” subject to the State’s curfew and “do-not-call” list restrictions. The bill would also prohibit prerecorded telephonic sales calls without prior express written consent.

Comment: These restrictions duplicate federal law already in place.

Florida
A Florida court has refused to dismiss a case brought against Obama for America by an individual (representing a class) who received calls on her cell phone in the last election. Shamblin v. Obama for America. The court considered, but did not rule on, the First Amendment “chilling” caused by the huge amount of damages potentially available under the TCPA.

Comment: More entities are considering challenging the TCPA on First Amendment grounds. This case may be first to specifically rule on the issue.

Hawaii
A judge has dismissed a TCPA case brought by an individual who provided her cell phone number to an airline then later received a text asking if she wished to receive flight information on the cell phone.

Comment: This case upholds the FCC’s ruling that providing a telephone number is “prior express consent” for non-marketing messages. Baird v. Sabre, Inc.

Missouri
A Missouri court has refused to dismiss a TCPA action brought against a producer of a film after the film hired an advertiser to place prerecorded calls encouraging attendance at theaters. Golan v. Veritas Entertainment, et al. The call purported to be a survey of Governor Mike Huckabee but clearly encouraged attendance at the film.

Comment: The judge indicated that the plaintiffs, who did not actually receive the prerecorded portion of the call, might not have standing to bring a challenge.

Texas
A Texas court has ruled that a plaintiff did not have a private cause of action to sue for improper transmission of caller identification information. Clark v. Avatar Techs, et al.

Comment: Once more, courts have ruled that the TCPA provides for a cause of action for the call, itself, not any other alleged violations within or associated with the call.

Wisconsin
The state of Wisconsin has repealed its “do-not-call” list law (2013 Senate Bill 155) and, after August 1, 2014, will no longer require purchase of its state “do-not-call” list, which had cost up to $20,000 per year, depending on the number of lines used. After that date, Wisconsin will enforce the federal “do-not-call” list and allow the state’s Department of Agriculture and Trade to share Wisconsin numbers with the FTC if they are not already on the national “do-not-call” registry. The state will create a “registration,” details of which will be set by the agency through the rule-making process.