May 2015

FCC

The FCC has sought public comment with regard to a request from a telecom company to clarify that the TCPA does not apply to messages it sends to its customers about the status of their accounts.  (In the matter of: Global Tel*Link, CG Docket No. 02-278).  See Public Notice (released April 21, 2015), FCC, http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0421/DA-15-482A1.pdf

The company uses an IVR system to initiate collect calls between inmates and persons they are attempting to call. 

If the FCC adopts this exemption, it would be one more “content-based” exemption to the TCPA ban on ATDS or prerecorded calls to cell phones made without prior express consent.

Comment: It is my belief that these content-based exceptions make the entire section unconstitutional.  Comments were due May 21, 2015, and reply comments are due by June 6, 2015.  Please contact me if you are interested in preparing comments or would like to discuss further. 

The FCC has issued a citation to a political prerecorded company alleging violations of the TCPA for prerecorded calls to cell phones placed without express consent.  In re: PoliticalRobocalls.com.  The commission called 10 of the cell phone numbers provided by politicalrobocalls.com and asked the person who answered the number if he or she provided express consent for the calls.  None of them said they had provided consent.

On May 4, the FCC issued several citations for calls to cell phones in violation of the TCPA.  These companies should immediately confer with counsel as class action plaintiffs may file “copycat” suits in response to the citations.

Verizon and Sprint have agreed to pay $158 million to settle investigations of “cramming” involving those companies billing customers for unauthorized services provided by third-party text messaging services.  The charges on consumers’ bills ranged from 99 cents to $14 per month.  Verizon and Sprint retained 30 percent or more of these fees.

The FCC has announced that as of May 8, 2015, 61 petitions have been filed seeking a waiver of certain fax disclosure requirements the agency admittedly imposed in an unclear fashion on businesses sending faxes to consumers.  See Public Notice (released May 8, 2015), FCC, http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0511/DA-15-555A1.pdf  Comments on the petitions were due by May 22, 2015, and reply comments are due by May 29, 2015.

The FCC has moved to dismiss a petition for review filed by Neustar, the company which was formerly the administrator of the cellular portability database.  Previously, the advisory committee had recommended that Telcordia become the new list administrator replacing Neustar.  The company’s stock had plummeted upon news of losing the FCC’s contract.

FTC

A district court granted the FTC an order against Instant Response Systems, barring the individual and his company from calling elderly consumers in attempting to solicit payment for unordered medical alert devices.  The company allegedly shipped fake invoices and unordered medical alert pendants to consumers then called attempting to coerce payment.  The Court ordered a judgment in the amount of $3.4 million against the defendants.

Alaska

Alaska is one of several states which publish a list of companies which are registered as telemarketers in the state.  As of April 27, 2015, Alaska had registered only five companies pursuant to its statute.

California

A California court has refused to dismiss a case brought by a consumer who ported a landline number to a cell phone, then sued a debt collector who called attempting to collect a debt.  Calls to cell numbers are permitted only with prior express consent if an ATDS is used, and the plaintiff alleged he never provided such consent.  Horowitz v. GC Services Limited.

A court in California has dismissed a TCPA case brought against a texting company because the plaintiff failed to allege the text was sent “without human intervention.”  McKenna v. WhisperText.  Whisper’s application allowed users to text their contacts.  The Court ruled that the plaintiff did not plead the application had the capacity to store or produce numbers without human intervention.

Florida

A Florida court has issued a stay in a case involving a purported class action for a failure to include proper disclosures.  Bondhus v. Henry Schein, Inc.  The defendant moved for a waiver of the opt-out provisions as provided by the FCC.  The defendant requested a stay in the case pending the FCC’s ruling on the petition for waiver.

Comment:  More than 12 entities have filed a request for waiver, most of which are likely defendants in class action cases.  The plaintiffs will likely object to their suits being made moot and dismissed by FCC waivers so expect them to fight the waiver process every step of the way.

 Missouri

A judge in federal court in the Eastern District of Missouri has ruled that a TCPA class action should be stayed pending FCC rulings on petitions before it concerning what constitutes an ATDS.  Hofer v. Synchony Bank.  The bank had called Hofer regarding a credit card debt purportedly owed by his deceased father.  The judge held that “Synchrony has not provided any reason to believe that a decision by the FCC on this issue is forthcoming.”