October 2014

FEDERAL

FCC

AT&T has agreed to pay $105 million to settle allegations of wireless “cramming.”  The FCC alleged that the company billed customers for unauthorized third party subscriptions and premium text messaging services.  Of the $105 million settlement, $80 million will be returned to customers, while state Attorneys General will receive $20 million for participating in the suit, and the U.S. Treasury will receive a $5 million penalty payment.
 
The FCC has issued an Enforcement Advisory regarding prerecorded calls and upcoming political campaigns.  The FCC stated that it will rigorously enforce consumer protections found in the Telephone Consumer Protection Act (“TCPA”), even against nonprofit and political organizations.
 
Comment: For compliance purposes, the most important of these is the restriction on predictive or prerecorded calls to cell phones.

FTC

The FTC has extended the deadline for public comment on review of the Telemarketing Sales Rule (“TSR”) through November 13, 2014.  Please contact me if you would like help with comments regarding the TSR regulatory scheme.

STATES

California

A California court has denied defendant’s motion for summary judgment in a California call monitoring case.  Nader v. Capital One Bank.  Another court has denied a motion to dismiss a case alleging an 800 number was illegally monitored.  The case has since settled. 
 
Comment: There have been cases on each side and the call monitoring dispute is likely headed to appellate court.  You should ensure that all monitored calls to or from California disclose monitoring prior to the beginning of the conversation, and that the monitoring disclosure cannot be bypassed by a consumer pressing “1” or some similar option.
 
A purported class alleging CashCall illegally eavesdropped on telephone conversations has not been certified and an appellate court upheld the trial court’s ruling.  The appellate court held that certification required individual evaluation of each potential class member’s experience with call monitoring and, therefore, was not suitable for class action status. Kight v. CashCall, Inc.
 
Comment: The case was filed in 2006 and involved the California penal code section prohibiting eavesdropping of calls to landlines if the communication is confidential.  Thus, plaintiffs now sue under a similar statute barring eavesdropping of calls to wireless numbers which do not require that the call be confidential.
 
A California federal judge has approved a class action settlement alleging Comenity Bank contacted consumer cell phones using an automatic telephone dialing system (“ATDS”) without prior express consent.  The calls involved debt collection but were received by persons who did not owe debts to Comenity and did not provide their cell phone number to Comenity.

Colorado

A Colorado court has rejected the argument that the TCPA restrictions on the use of ATDS’s do not apply to business numbers.  Warnick v. Dish Network, LLC.  The plaintiff received a non-telemarketing call from Dish Network on his cell phone and alleged that the call violated the TCPA’s ATDS restrictions. 

Florida

A Florida court has reversed a TCPA ruling which had rejected the FCC standard for “prior express consent.”  Mais v. Gulf Coast Collection Bureau, Inc.  Mais sued a radiology provider and its debt collection company after it called him even though he provided his number to a hospital and received services from the radiology provider.  The court ruled that Congress deprived trial courts of the ability to question the FCC’s ruling regarding “prior express consent” and his provision of the cell phone number to the hospital constituted express consent. 

Georgia

Home Depot has requested that a federal judge in Georgia dismiss a class action filed against it in the wake of a data breach of consumers’ credit card information.  Home Depot argues that the plaintiffs’ have not suffered any injuries and the class action was filed only two days after the data breach became public.  Solak v. Home Depot, Inc

Maryland

An appellate court has affirmed a ruling against a debt collector who allegedly called a debtor in violation of the TCPA. Lynn v. Monarch Recovery Management.  The court held Lynn was charged for each call he received and, therefore, the TCPA’s restriction on ATDS calls to that number applied.
 
A Maryland court has agreed with a debt collector which alleged that it did not call the plaintiff’s number with an ATDS.  Nieto v. Allied Interstate.  The court held that the plaintiff could not prove that the debt collector used an ATDS to make the calls. 

New Jersey

A bill has been proposed in the New Jersey Assembly (AB 3757) which would require that sellers of energy keep recordings of all sales calls made to consumers for at least three years from the date of the call.
 
A bill has been proposed in the New Jersey Assembly (AB 986) which would create a telemarketing fraud investigation unit within the Division of Consumer Affairs. 

New York

A New York court has held that a plaintiff could not allege that prerecorded calls to his telephone line were illegal calls to a residential line when he held it out as a business number.  Bank v. Independence Energy Group.  Bank used the number for his law firm. 

Wisconsin

A marketer of home alarm systems has agreed to pay a $50,000 penalty to resolve allegations of violations of Wisconsin’s “do-not-call” list.  Versatile Marketing Solutions was alleged to call more than 40,000 numbers on the state’s “do-not-call” registry.
 
Comment: While Wisconsin has a very restrictive “do-not-call” law, it generally has not enforced it as effectively as some other states.  As you know, Wisconsin no longer has its own “do-not-call” list but uses the federal list.