MAY 2018

Federal Trade Commission

A Florida-based company will surrender more than $3 million of assets to the Federal Trade Commission (“FTC”) to settle claims of illegal telemarketing of timeshare resale services.  The callers charged property owners $2,500 in advance claiming to be able to broker a sale of their timeshare and the FTC alleged these claims were false.  FTC v. J. William Enterprises, LLC, et al.

Political Calling

Politico issued a report on May 4, 2018 regarding “scam” political action committees (“PACs”) which allegedly raise money in guise of supporting police or veterans’ political causes.  See https://www.politico.com/story/2018/05/04/scam-pacs-political-action-committees-charity-investigation-568491.

Comment: Political calling is exempt from the Telemarketing Sales Rule (“TSR”), but it is not exempt from the Telephone Consumer Protection Act (“TCPA”) which regulates all non-emergency calls, even political calls, to cell phones or other numbers for which the called party is charged.

Connecticut

A Connecticut court has dismissed a fax case brought by a doctor’s office against a pharmaceutical company.  The fax contained a list of medications, but the court ruled that the fax was not an “unsolicited advertisement” such that the TCPA would apply.  It therefore dismissed the case.  Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc.  The court noted that the fact that a sender might gain some remote economic benefit later on does not make a non-commercial informational fax a solicitation. 

Comment: This ruling should be of use to TCPA defendants whose business name is used in an informational, non-advertising fax.

Georgia

A Georgia federal court has refused to dismiss a case brought against a bank which called a borrower concerning an automobile loan.  Weed v. SunTrust Banks, Inc

Comment: The judge ruled prior express consent is an affirmative defense which would need to be proved in court and did not dismiss the case.

Louisiana

A Louisiana judge has dismissed a purported text class action in which the plaintiff alleged she received unwanted text messages after entering a contest to win free tickets.  Reese v. Marketron Broad. Solutions.  The plaintiff alleged that the first text message Marketron sent her advertised goods or services, but the judge disagreed.  Even though it contained the text “buy tix”, the judge ruled that message did not cause the text to rise to the level of advertising.  The judge also ruled that the TCPA’s requirement that artificial or prerecorded voice messages have a key-press opt-out mechanism did not apply to text messages.

Ohio

A judge has awarded sanctions against a TCPA plaintiff who continued a lawsuit for three years despite knowing that neither of the defendants called him.  Lucas v. Calling.  The judge recommended the case be closed but warned both sides to “carefully consider” “scorched earth” policies in the case.

Oregon

The state of Oregon has entered into an assurance of voluntary compliance with a marketing company and a PAC alleging violations of the national “do-not-call” list and state law prohibiting deceptive representations in solicitations. 

Comment: I do not understand why the entity would settle charges of calling persons on the national “do-not-call” list.  While the national “do-not-call” list does not apply to political or charitable solicitations for donations, Oregon’s state law does and prohibits solicitations for contributions to persons from Oregon on the list.  The problem is that persons who have registered on the national “do-not-call” list do so under the impression that it applies to sales calls, only, thus creating potential constitutional issue with the state law (using the federal list).  This organization appears not to have raised this challenge.