NOVEMBER 2017

Federal Communications Commission

On November 16, 2017, the Federal Communications Commission (“FCC”) issued a guide preventing unsolicited prerecorded telemarketing calls and adopted new rules to allow voice service providers to proactively block certain types of calls “likely to be fraudulent”.  See https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts.

Comment: I have had several clients’ telephone numbers blocked in error, however, when I contacted a blocking telephone company, they removed the block.

Federal Trade Commission

The Federal Trade Commission (“FTC”) has settled charges against two individuals and their corporations resulting in a payment of $155,000 to settle allegations of illegal prerecorded telemarketing calls to consumers on the national “do-not-call” registry.  United States v. KFJ Marketing, LLC, et al.  The messages included statements such as “this is an urgent call about your energy bill” and “stop the 14 percent increase coming soon.”  Consumers who pressed one were transferred to a telemarketer offering to sell solar panels.

Comment: The “press one” after a prerecorded message does not constitute “prior express consent” such that these calls would be illegal under the Telemarketing Sales Rule (“TSR”) or the Telephone Consumer Protection Act (“TCPA”).

Alabama

A CBS television affiliate in Alabama has reported persons receiving a prerecorded call from “Lennie Bernstein … a reporter for the Washington Post” offering a cash reward for damaging remarks about Senate candidate Roy Moore.  Although Lennie Bernstein is a reporter at the Post, the remainder of the message is false and was not sent or created by him.

Comment: The message is obviously illegal and could subject the caller to potentially catastrophic damages under the TCPA as well as regulatory including criminal action.

Florida

A bill has been proposed in the Florida Senate (SB 568) which would add direct to voicemail messages to the definition of “telephonic sales call” in Florida’s no-call statute.

Comment: Some entities have argued that direct to voicemail messages are not “telephone calls” as that term is defined in federal or state law.  One entity asked the FCC for a ruling on this issue.  It seems to me very unlikely that the FCC would rule that a voicemail message was not a telephone call, and this state bill is probably a reaction to the press coverage of that issue.

A court has denied class certification in a TCPA case alleging illegal calls to cell phones made without the prior express consent of the recipient.  Jacobs v. Quicken Loans, Inc.  The court ruled that the issue of consent would require an examination of each call and thus was inappropriate for class status.

Illinois

A court in Illinois has ruled that class action certification is inappropriate if the court needs to review each claimant to determine whether the fax he or she received was “solicited”.  Alpha Pet Tech, Inc. v. Lagasse.  The D.C. Court of Appeals had ruled that the FCC had no authority to require disclosures on solicited faxes, and this judge agreed that each claimant would need to be examined to determine whether faxes were solicited or not making the case inappropriate for class action status.

Comment: This is an important case for other fax class actions as most courts have now adopted Bais Yaakov of Spring Valley, et al v. FCC, et al. and its ruling that disclosures cannot be required by the FCC on solicited faxes.  Most compliant entities know unsolicited faxes are illegal, thus this case should defeat actions where plaintiffs allege unsolicited faxes, but the sender intended to send its communications only to its customers who expressly requested those faxes.

An Illinois court has struck a plaintiff’s claim that she could recover attorneys’ fees under the TCPA.  The court noted that attorneys’ fees are not recoverable under the statute.  McCoy v. A1 Diabetes & Med. Supply, Inc.

Michigan

A court has ruled that whether a debt collector heard a consumer’s “do-not-call” request was a question of fact and therefore denied the plaintiff summary judgment after he twice made a “do-not-call” request and subsequently received more than 90 telephone calls.  Bally v. First National Bank of Omaha.

A court has granted summary judgment for Abercrombie & Fitch Stores in a case where a consumer texted “style” to opt-in to a text program, then claimed the subsequent texts she received were unsolicited.  Thomas v. Abercrombie & Fitch Stores, Inc.  Plaintiff had discarded the cell phone she used when she received the text messages three months before the case due to “screen damage”.  She did not retain her text message history.

New York

A New York court has granted a motion to dismiss filed by a debt collection company in a TCPA class action.  Rodriguez v. Student Assistance Corp.  The plaintiff had previously been a member of a TCPA class and agreed that she could be contacted on her cell phone unless she submitted a revocation request.  The court held that the TCPA does not permit a party who agrees to be contacted as part of a contract to unilaterally revoke that consent.