NOVEMBER 2015

FCC

The FCC has begun to produce a weekly list of unwanted “robo and telemarketing calls” containing thousands of complaints listed by time, date, caller ID number, type of call, and state.  The lists do not include the name or phone number of the recipient for the call.

Comment: You should review the caller ID numbers on the lists to determine if your caller ID is being used (either by you or by a spoofer) and head off a potential problem before you hear from the FCC on the issue.

The FCC has settled a claim with Cox Communications involving the company’s loss of customers’ personal data.  Cox paid $595,000 to settle claims that it improperly divulged confidential information resulting in a data breach.  In this matter, a third party deceived a Cox customer service representative.

Comment: The FTC, FCC, and state attorneys general can all enforce laws regarding breach of customer personal information.  Basically, there is a requirement in every state that you notify someone (e.g. the consumer, the state attorney general etc.) of a breach, so if you have a breach, you should report it immediately to your lawyer to determine what your legal obligations are. If you would like a summary of these laws, please contact me.

The FCC and FTC have entered into a new memorandum of understanding regarding enforcement of the Communications Act of 1934 and laws designed to prevent unfair or deceptive acts in commerce.  See https://www.ftc.gov/system/files/documents/cooperation_agreements/151116ftcfcc-mou.pdf.

In that document, the agencies specifically agree that it is their position that the FCC is not barred from enforcing the FTC Act against common carriers engaged in “non-common carrier activities.”  “Common carriers” include telephone companies.

Comment: The TCPA and TSR are, for the most part, consistent, but there are still some differences in the rules, most notably with regard to calls to cell phones.

FTC

The FTC has announced more than 30 law enforcement actions against debt collectors who allegedly used illegal tactics.  The plan “Operation Collection Protection” is a cooperative effort between the FTC and state and local law enforcement.  A few of the defendants include BAM Financial, Delaware Solutions, KIP, LLC, and the National Check Registry.

TCPA

Western Union has agreed to pay $8.5 million to settle claims it sent unsolicited text messages to persons who had not previously expressly consented to those messages.  The plaintiffs’ attorneys will be awarded 35 percent of the fund, or approximately $2.9 million.

U.S. Congress

The U.S. Congress has amended the TCPA pursuant to the Bipartisan Budget Act of 2015 to allow calls to cell phones without prior express consent if made solely to collect a debt owed to or guaranteed by the United States.

Comment: Many types of loans are guaranteed by the United States including student loans, many categories of mortgages, taxes, etc.  On top of this, this is one more “content based” exemption to the TCPA’s restrictions on calls to cell phones which call the entire statute’s constitutionality into question. If you would like to discuss a constitutional challenge to this section of the TCPA, please contact me.

U.S. Supreme Court

The United States Supreme Court heard oral argument in the Spokeo v. Robbins case on November 2nd.  Spokeo argued that Article III of the United States Constitution requires an actual injury for a plaintiff to make a claim and statutes like the TCPA and the SCRA do not require that plaintiffs have an “actual injury” to sue and thus federal courts cannot hear those claims.

Comment: From the questions, it appeared that conservative justices supported Spokeo’s position but it is hard to predict the outcome.

California

A California court has dismissed a case against Dun & Bradstreet.  Freyja v. Dun & Bradstreet, Inc.  The plaintiff alleged she was called on her cell phone using an automatic telephone dialing system.  The Court rejected this argument noting that she was called on a desktop phone that could not be used as an autodialer.  The plaintiff claimed that the phone could have been connected to an Avaya server and a desktop computer, but could not show that it was connected nor that it had the “capacity” to dial without human intervention.