OCTOBER 2016

FCC

On September 30, 2016, the FCC issued an opinion allowing telephone subscribers to request call blocking in order to prevent their telephone numbers from being spoofed.  Telephone providers may block calls using a spoofed number when requested by the spoofed number subscriber, e.g. a government agency such as the IRS.

On September 13, 2016, the FCC issued a citation against an individual and his ministries finding that the ministry violated the TCPA by sending prerecorded calls to consumers’ cell phones.  In the Matter of Manasseh Jordan Industries.  One call stated “the Lord began to speak to me and showed me major losses that you have experienced within the last two to five years ….”

Comment: The call also fails to comply with the TCPA’s disclosure requirement applicable to all prerecorded calls.

FTC

The FTC has issued almost $20 million in refunds to consumers who were offered free access to credit scores, but then charged $29.95 per month for credit monitoring which they did not request.  FTC v. One Technologies, LP.  Approximately 145,000 consumers will receive a check from the FTC for about $137.

The FTC has banned a vice president of a debt collection company from participating in debt collection businesses.  FTC v. Commercial Recovery Systems, Inc.  The FTC originally filed suit in January 2015 alleging Commercial Recovery Systems violated the FTC Act by making false claims that the calls were from an attorney or judicial employee among other allegations.

The FTC is considering reversing its September 2009 opinion which ruled that calls using prerecorded voice messages managed by a live operator are not prerecorded calls for purposes of the TSR.

Comment: Many businesses have become adept at using this technology by which a single employee can manage multiple calls at the same time.  As the FTC may ban this technology, you should take action immediately if you are currently using this technology.

A federal district court has shut down a telemarketer offering fraudulent investments in e-commerce websites.  FTC v. Advertising Strategies, LLC, et al.  The lawsuit alleges violations of the FTC Act and the
TSR.

Comment: The FTC obtained a temporary restraining order freezing the assets of the defendants and their businesses.  This is a drastic measure rarely used by the FTC except in cases of alleged financial fraud.

California

A California court has granted a motion to dismiss after a well-known TCPA plaintiff sued based on allegedly receiving one telephone call on his cell phone.  Ewing v. SQM US, Inc.  The Court ruled that the plaintiff lacked standing to sue because he had not suffered a concrete injury caused by the alleged TCPA violation.

Comment: The judge concluded that Ewing could not allege the call caused him to be charged for his cell phone service and did not suffer injury in fact.  The judge therefore dismissed the case.  The plaintiff is well known for making aggressive claims in the TCPA and other areas.

A California court has rejected a plaintiff’s argument that flu shot reminder calls violate the TCPA.  Jackson v. Safeway.  She received two flu shots from the defendant pharmacy and provided a consent form including her cell phone number on each occasion.

The judge rejected all her arguments that her consent did not include future flu shots, that her consent needed to be in writing, and that the calls did not fall within the HIPAA exemption.

Comment: The judge ruled against the plaintiff on multiple grounds.  Normally, judges do not have to do that.  For example, if the judge had concluded on the first issue of the application of the HIPAA exemption, she would not have needed to address plaintiff’s other arguments.  Because she did so, it appears this judge thoroughly rejected this “shakedown” attempt (in my words) in such a way as to discourage appeal of her order and future such actions.

Illinois

A judge has refused to strike class action allegations against an online university alleging violation of the TCPA for ATDS calls to consumers’ cell phones.  Mauer v. American Intercontinental University, Inc.  The Court held that it could not determine from the pleadings alone whether express consent was an individualized issue such that class status would not be permitted. 

An Illinois court has approved a settlement against a mortgage company with a TCPA class alleging the mortgage company sent debt collection calls to consumers’ cell phones without their prior express consent.  Wright v. Nation Star Mortgage.  The settlement involved a $12.1 million common fund with a payment of 30 percent to plaintiff’s counsel for attorney’s fees.

Pennsylvania

A court has dismissed a case against an insurance company brought by a pro se plaintiff alleging calls on his cell phone service without prior express consent using an ATDS.  Because the plaintiff did not plead any facts in the complaint relative to an ATDS, the Court dismissed the TCPA claim.  Despot v. Allied Interstate, Inc. et al.