October 2013

In this issue:

  • A trade organization is petitioning the FCC for a declaration that the new express consent rules, which went into effect on October 16th, are not retroactive, i.e. express consents which were compliant with the law before that date still must be valid express consent now. Read comment.
  • The FTC has updated the fees charged for access to the national “do-not-call” registry effective October 1, 2013. The new fees will be $59 per year for a single area code or $16,228 for a complete list.
  • A bill has been proposed in the Florida Senate which would subject all telemarketing sales to sales tax if gross receipts from sales to customers in the state of Florida were more than $10,000 per year (SB 202).

Federal Communications Commission
A trade organization is petitioning the FCC for a declaration that the new express consent rules, which went into effect on October 16th, are not retroactive, i.e. express consents which were compliant with the law before that date still must be valid express consent now.

Comment: Given the current class action climate, it is not the FCC’s enforcement that worries me, but rather a private class action. A class action attorney is unlikely to accept an express consent which does not meet the current standard, i.e. there is no retroactive protection for consents created prior to October 16th.

Telephone Consumer Protection Act
The Third Circuit Court of Appeals has reversed a New Jersey trial court’s ruling that an individual could not sue Bank of America under the TCPA for a call directed to his roommate. Leyse v. Bank of America. Another court had ruled that he was not the called party and, therefore, lacked standing to sue under the TCPA. The appellate court, however, held that he could sue and that an earlier ruling in the Second Circuit from the State of New York did not bar the current case.

A trial court in Maryland has ruled that a TCPA defendant could not settle with the individual plaintiff and thereby make the class moot. Kensington Physical Therapy, Inc. v. Jackson Therapy Partners.

Comment: There is a split in the circuits regarding whether this tactic should be successful for defendants facing class actions. The Supreme Court often accepts review of a case when appellate circuit courts disagree.

An Oklahoma court has ruled that there is no good faith defense with regard to calls to a plaintiff’s cell phone in violation of the TCPA. Morgan v. Branson Vacation and Travel, LLC. The court awarded the plaintiff damages in the amount of $18,500 based on 37 phone calls and allowed the plaintiff to make a future claim for willful damages if he desired.

A California court has allowed a class to proceed against a website which placed calls offering jobs to consumers’ cell phones. Olney v. Job.Com, Inc. The plaintiff alleged that he never provided his telephone number to Job.com and, therefore, did not provide express consent to be called.

Comment: The court asked if plaintiff consented to calls from a lead creator, was that sufficient to consent to calls from other job hunting websites to whom the lead creator sold the lead. Although it allowed the case to proceed, the key conclusion is that third-party lead creator consents should clearly and conspicuously disclose who might ultimately call the consumer based on that lead.

A California court has ruled that an arbitration agreement between a consumer and her credit card company was enforceable with regard to her potential TCPA claims. Cayanan v. City Holdings, LLC.

A Wisconsin court has dismissed a case brought by the mother of a debtor by a creditor. Mudgett v. Navy Federal Credit Union. The company claimed that it manually dialed her telephone number and thus was not subject to the ATDS restrictions in the TCPA. The plaintiff argued that the equipment was connected to a computer capable of acting as an ATDS and therefore had the capacity to dial but the court rejected this argument.

Federal Trade Commission
The FTC has updated the fees charged for access to the national “do-not-call” registry effective October 1, 2013. The new fees will be $59 per year for a single area code or $16,228 for a complete list.

Arizona
Arizona has amended its delivery of recordings statute to apply the restriction to text messages but allow recordings or text messages with the express consent of the recipient or an established business relationship (HB 2312). The problem is that another Arizona statute (Ariz. Rev. Stat. § 44-1278) bans all prerecorded messages by any telephone solicitor. So if you are a telephone solicitor, calls are banned, but if not, prerecorded calls or text messages are allowed with an established business relationship or express consent. Federal law, obviously, can be more restrictive, however.

Florida
A bill has been proposed in the Florida Senate which would subject all telemarketing sales to sales tax if gross receipts from sales to customers in the state of Florida were more than $10,000 per year (SB 202).

New Jersey
A federal court in New Jersey has certified a class action of recipients of faxes alleged illegal under the TCPA and state law. A&L Industries, Inc. v. P.Cipollini, Inc. The faxes dated from September 2006. The court held that class action was the superior means of resolving the claim and certified the class.

New York
A bill has been introduced in the New York General Assembly (AB 8164) which would authorize the Public Service Commission to fine energy services companies up to $500 per violation of the “do-not-call” registry if they make unsolicited telemarketing sales calls to customers included on that registry.

In New York, a federal court considered whether state law was preempted by the TCPA with regard to interstate calls. It ruled that state law was not preempted by the TCPA. Sussman v. I.C. Systems.

Texas
Texas has amended its prerecorded telephone call statute to specifically apply the statute to any automated dialing announcing device call that originates or terminates in the state (SB 1040).