November 2012

In this issue:

  • The FCC issued an advisory regarding TCPA restrictions on autodialed and prerecorded calls as applied to political calls. Prerecorded voice messages and automated telephone dialing calls are only permitted to cell phones with the prior express consent of the recipient.
  • An Illinois court has ruled that a debt collector did not have prior express consent to call a consumer’s cell phone provided to an insurance company by the consumer....The court held, however, that the debtor did not give her phone number to the debt collector but rather to a different company.
  • Effective August 28, 2012, Missouri’s “Do-Not-Call” Registry now includes cell phones used primarily for personal family use. H.B. 1549. The size of the list doubled after the change in the law.

Federal Communications Commission
On September 11, 2012, the FCC issued an advisory regarding TCPA restrictions on autodialed and prerecorded calls as applied to political calls.  Prerecorded voice messages and automated telephone dialing calls are only permitted to cell phones with the prior express consent of the recipient.  Prerecorded voice messages are also subject to additional disclosure requirements found in the TCPA.

Comment: You should review whether lists you call include cell phone numbers to ensure compliance with the TCPA.  FCC enforcement is only one risk as a TCPA class action can impose even more monetary liability.

The Office of Business and Management approval of new FCC rules implementing the TCPA was published in the Federal Register on October 16, 2012. Thus, prior express consent for telemarketing calls to cell phones and by prerecorded message needs to be in writing and signed for calls after October 16, 2013. The new keypress opt-out and abandonment provisions go into effect on November 15, 2012. The FCC’s keypress opt-out requirements for all prerecorded telephone solicitations go into effect on January 14, 2013.

Comment: These restrictions largely mirror existing FTC rules.  However, they impose new restrictions with regard to the keypress opt-out required during an abandonment message and require prior written express signed consent for predictive dialed sales calls to cell phones.

California
The Ninth Circuit Court of Appeals has ruled that the trial court properly certified a class against a debt collector alleging violations of the TCPA.  Meyer v. Portfolio Recovery Associates.  The company allegedly placed calls using predictive dialers to cell phones without the express consent of the recipient (numbers obtained through “skip” tracing).

Colorado
A Colorado court has ruled that the applicable statute of limitations for the TCPA is four years.  Donaca v. Dish Network, LLC.

Florida
The State of Florida requires that some, but not all, exempt entities file an affidavit of exemption with regard to the state’s telemarketing act.  Fla. Stat. § 501.601 et seq.  If you believe you are exempt from registration pursuant to an enumerated exemption found at Fla. Stat. § 501.504 and that exemption is not listed on the affidavit of exemption form, you are not required to file an affidavit. http://www.freshfromflorida.com/onestop/forms/10001.pdf

Comment:  It makes no sense why some exempt entities need to file an affidavit of exemption but some don’t, other than a drafting accident and the desire to not redo a form.

A court has considered allegedly unsolicited commercial text messages sent by an adult nightclub to consumers.  The plaintiff argued that he had never provided his cellular telephone number to the nightclub.  Buslepp v. B&B Entertainment, LLC.  The court ruled that the TCPA applies to text messages and that the defendant’s offer of judgment did not moot the plaintiff’s action.  The court ruled that the plaintiff was entitled to summary judgment on the issue of prior express consent because he had not visited the club nor provided his telephone number.

Illinois
A debt collector has moved to consolidate five class actions brought against it alleging violations of the Telephone Consumer Protection Act.  In re: Portfolio Recovery Associates.  A court agreed with the debt collector and combined the cases in the Southern District of California.

In an Illinois suit against a debt collector and a bank, Martin v. Leading Edge Recovery Solutions and Capital One Bank, a court has refused to dismiss a putative class action against the companies.  The companies called the plaintiffs’ cell phones sometime between 2007 and 2011 with a debt collection call.  The account was held by a relative of the plaintiffs, but neither plaintiff provided their cell phone number to either defendant.  The court refused to dismiss the case despite the fact that the plaintiffs had not suffered actual damages.

An Illinois court has ruled that a debt collector did not have prior express consent to call a consumer’s cell phone provided to an insurance company by the consumer.  The court held that it could challenge the FCC’s interpretation of express consent pursuant to the Hobbs Act.  Thrasher-Lyon v. CCS Commercial. The court held, however, that the debtor did not give her phone number to the debt collector but rather to a different company.

Comment:  It is extremely important to evaluate where numbers you intend to call come from if those numbers include cell phone numbers or your message is prerecorded.

Missouri
Effective August 28, 2012, Missouri’s “Do-Not-Call” Registry now includes cell phones used primarily for personal family use.  H.B. 1549. The size of the list doubled after the change in the law.

New Jersey
The federal court in New Jersey has dismissed the claim brought against a teleservices company and its owner. Zelma v. DialAmerica Marketing, et al.  Plaintiff alleged violations of the TCPA and state “do-not-call” laws based on calls to his wife seeking to renew a magazine subscription.  The court dismissed the claims based on the established business relationship exemption and dismissed the claim against the individual defendant because he did not plead sufficient individual involvement for corporate actions.  The court also dismissed a claim that the damages should be trebled for willful and knowing actions because plaintiff only recited the statutory language but failed to plead any particular facts showing willful or knowing violations.

Comment: The plaintiff is a common pro se “professional.”  Far too often defendants in his cases settle for nuisance amounts rather than fighting vexatious claims.

Oregon
The Oregon Department of Justice has not enforced its statute prohibiting political prerecorded calls to persons on the national “do-not-call” registry, primarily because of questions regarding the constitutionality of that statute.

Comment:  It is blatantly unconstitutional to apply a list intended to regulate commercial telephone calls to political speech.  Political speech is “fully protected” by the First Amendment of the Constitution, and there is absolutely no indication that consumers who signed onto that list intended their “do-not-call” requests to apply to other types of calls.  I would relish the opportunity to challenge this statute in court.