NOVEMBER 2016

Federal Communications Commission (FCC)

The FCC has dismissed petitions for reconsideration of a total of $20 million in fines issued against four prepaid calling card companies.  The FCC alleged the companies falsely advertised that the cards would provide consumers more minutes than actually provided as the cards assessed fees and surcharges diminishing minutes available.  See https://apps.fcc.gov/edocs_public/attachmatch/DOC-341936A1.pdf.

The FCC has adopted an order regulating how internet service providers use and share customers’ personal data.  See https://www.fcc.gov/document/fcc-adopts-broadband-consumer-privacy-rules.

The FCC has granted 22 waivers to its ambiguous fax disclosure requirements.  In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991 et al., CG Docket No. 02-278, November 2, 2016.  It partially granted another, but denied three petitioners who admitted to being unaware of the TCPA requirement and failed to implement the opt-out disclosure rather than trying to comply with the ambiguous rules.

The FCC also granted waivers to seven companies from the 2012 prior express consent rule change.  That rule change required prior express written signed consent for certain telemarketing calls.  In the Matter of Rules and Regulations Implementing the TCPA of 1991 et al., CG Docket No. 02-278, October 14, 2016.  These petitions will effect class actions brought against the some of the seven companies.

The FCC has signed a memorandum of understanding with the Canadian Television and Telecommunications Commission agreeing to work together to combat unlawful prerecorded calls.  The two agencies agreed to cooperate with regard to enforcement and exchange knowledge regarding violators working in both countries.  See http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db1117/DOC-342223A1.pdf.

Alaska

Several states allow an online search of registered telemarketers.  I recently had the opportunity to review Alaska’s registered telemarketers at http://www.law.alaska.gov/pdf/consumer/registered_telemarketers.pdf.  Four companies have registered despite the fact that Alaska lacks exemptions found in many other states.

Comment: Often “enforcement” of these laws comes from clients of outsourced callers who require their agents register or be exempt as a condition of doing business.  States, especially smaller states, often will not actively enforce the law absent a complaint about a given caller.

Colorado

A client recently sent me an email from Colorado’s consumer protection unit regarding application of the state “do-not-call” list.  The regulator noted that the Colorado “do-not-call” list does not apply to calls to businesses, specifically “small and home-based businesses.” 

Comment: The Colorado Supreme Court has ruled differently.  See Holcomb v. Jan-Pro Cleaning Sys. of S. Colo., 172 P.3d 888, 890 (2007).  Colorado is unique because its list applies to residential numbers even if used for business purposes.  I would not ignore the ruling of the Colorado Supreme Court in favor of the regulator’s mistaken email.

Missouri

A chiropractic clinic has obtained a default judgment in a purported TCPA class action for illegal faxes.  Berger Chiropractic LLC v. Hilltop C&I, Inc., No. 16-CV-00678, 2016 U.S. Dist. LEXIS 156134 (E.D. Mo. Nov. 10, 2016).

Comment: The judge only awarded plaintiff $500, which demonstrates the Court’s hostility, in my opinion, to these actions. 

New Jersey

The New Jersey Senate is considering a bill (SB 2461) which would create a task force to study technology and other methods to reduce telemarketing harassment. 

Texas

A Texas court has dismissed a case brought against an entity who the plaintiff alleged called him 24 times soliciting donations of automobiles.  Morris v. Copart, No. 15-CV-00724, 2016 U.S. Dist. LEXIS 155755 (E.D. Tex. Nov. 9, 2016).  The plaintiff could show no connection between defendant and the calls other than speculation.  Because of this, the Court dismissed the case because plaintiff could not show that there were factual issues to be determined at trial.

Washington

A Washington court has dismissed a complaint against Twilio which sent a text to a consumer to confirm information provided when the plaintiff ordered a dietary supplement.  Wick v. Twilio Inc., No. 16-CV-00914, 2016 U.S. Dist. LEXIS 151482 (W.D. Wash. Nov. 1, 2016).

Comment: This case is one more in a line rejecting TCPA plaintiffs who request texts, calls, or faxes, then sue alleging violation of their privacy.