MAY 2017

Federal Communications Commission

The Federal Communications Commission (“FCC”) has requested comments regarding whether “ringless voicemail” to a person’s cell phone is regulated by Telephone Consumer Protection Act (“TCPA”) restrictions on calls to cell phones.  See http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0418/DA-17-368A1.pdf.  This technology allows a caller to leave a voicemail message on a consumer’s cell phone without the phone ringing.  Although the comment period is closed, reply comments may be filed before June 2, 2017.

Comment: I think it very unlikely that the FCC will grant this petition ruling that a voicemail is not a “call” as defined in the TCPA.

Federal Trade Commission

The Federal Trade Commission (“FTC”) has filed suit against a credit repair company and obtained a temporary restraining order halting its businesses.  FTC v. Strategic Student Solutions, LLC, No. 17-cv-80619 (S.D. Fla. May 15, 2017). 

Comment: Credit repair and debt relief programs are subject to special rules under the Telemarketing Sales Rule (“TSR”), often prohibiting payment in advance of providing the services.

Alabama

A bill has been proposed in the Alabama Senate (SB 370) which would modify the State’s registration exemption for persons soliciting the sale of newspapers or magazines.  The bill would modify that exemption to specify that persons selling magazines or periodicals as part of a membership package still could fall within the exemption if the primary purpose was soliciting the sale of a magazine.

California

A California court has granted a defendant’s motion for summary judgment in a TCPA class action brought by a consumer who received two text messages.  Reichman v. Poshmark, Inc., No. 16-cv-02359, 2017 U.S. Dist. LEXIS 73769 (S.D. Cal. May 15, 2017).  The plaintiff received texts because his client was a registered user of Poshmark and caused people on her contact list to receive the texts.

Comment: The court agreed with the defendant that it did not cause the text to be made.  Rather, the texts were made by the person who sent texts to her own contact list.

In 2014, a law firm in California sent out many demand letters alleging that persons calling 800 numbers were illegally monitored under California’s wiretapping law.  The plaintiffs would intentionally “opt-out” of an inbound recording to speak to a live representative and thereby bypass a disclosure of monitoring.  In 2015, a recipient of one of these letters sued alleging a scheme of bribery and evidenced creation by the law firm in violation of Racketeer Influenced and Corrupt Organizations Act and other laws.  Natural-Immunogenics Corp. v. Newport Trial Group, et al. (C.D. Cal. 2015).  That case is still ongoing.

Comment: I have not received any more of these demand letters.

Massachusetts

A bill has been proposed in the Massachusetts House (HB 137) which would allow businesses to sign up for the no-telemarketing “do-not-call” list.

Comment: Massachusetts still administers its own “do-not-call” list, so it would not affect numbers on the federal list.  When the constitutionality of the federal list was challenged, the court which approved it noted it applied only to calls to consumers based on consumer privacy rights.  Courts traditionally have ruled that businesses do not have privacy rights, and the constitutionality of this section is therefore highly suspect.

North Carolina

A bill has been proposed in the North Carolina House (HB 787) which would specifically include lead creation in the definition of “telephone solicitation.”

Comment: Lead creation for commercial purposes already likely falls within the definition of “telephone solicitation” because it obtains information which might be used for a later sales solicitation.

On May 22, 2017, the Honorable Catherine Eagles from the United States District Court for the Middle District of North Carolina issued an opinion holding Dish Network liable for the actions of its vendor and assessing treble damages under the Telephone Consumer Protection Act (“TCPA”) against DirecTV in a class action.  Krakauer v. Dish Network L.L.C., No. 14-cv-00333, 2017 U.S. Dist. LEXIS 77163 (M.D.N.C. May 22, 2017).

Comment: The judge found Dish Network liable for treble damages or potentially $60 million or more.  The case highlights two concerns of utmost importance: 1) you must monitor your vendors’ activities as you can be held liable for those activities, especially if you “know, have reason to know, or consciously avoid knowing” of those illegal activities; 2) if you do receive an inquiry or complaint, you must investigate and stop any illegal practice or cease doing business with that entity.  Often complaints are “smoke” which a diligent attorney or compliance officer can correct before the real “fire” causes serious damage.

Pennsylvania

A bill has been proposed in the Pennsylvania House (HB 448) which would require the office of the Attorney General to coordinate its activities with the state Department of Aging for telemarketing matters.

A bill has been proposed in the Pennsylvania House (HB 105) which would ban making telephone solicitations on legal holidays.  The bill would also require disclosures in prerecorded calls of how the recipient could opt-out of future telephone solicitations through a key-press mechanism.