Federal Communications Commission
On October 11, the Federal Communications Commission (“FCC”) published a guide for consumers regarding stopping unwanted telemarketing and text messages. See https://www.fcc.gov/consumers/guides/stop-unwanted-calls-texts-and-faxes. The guide summarizes FCC restrictions on robocalls, the “do-not-call” list, spoofing, and call blocking.
The FCC has sought public comment on a request for declaratory ruling by Outcome Health. Outcome sought an exemption after “unsubscribe” requests made by recipients of texts that were not honored due to technical error. Comments are due November 27, 2017.
Comment: This could be an important matter as the calls to cell phones restriction in the Telephone Consumer Protection Act (“TCPA”) is often described by plaintiffs as “strict liability”, i.e. they argue there is no good faith defense for texts or calls sent as a result of error. If the FCC rules favorably on this request, that argument would be eliminated and many class actions would be uncertifiable.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has obtained a ban against Stark Law, Stark Recovery, and related companies after obtaining a judgment of more than $47 million against them alleging violations of the FTC Act regarding collection of fake debt. FTC et al. v. Stark Law, et al. The defendants allegedly pretended to be lawyers with the authority to sue and obtain judgments in communications with consumers.
The FTC has settled two claims against operators of allegedly illegal technical support companies which generated inbound calls using pop-up ads. The ads warned consumers that their computers were infected with viruses when that was not the case. FTC v. Troth Solutions, Inc.
A court has dismissed a claim alleging a college lead generator used an automatic telephone dialing system (“ATDS”) to call a plaintiff and others similarly situated. Priester v. eDegreeAdvisor, LLC. The judge ruled that conclusory allegations of ATDS in the complaint were not sufficient to state a claim for relief.
A California court has held that California’s call monitoring law provides damages “per action” not “per violation” prior to January 2017. Ramos v. Capital One, N.A. In January 2017, the California legislature modified the law to provide for damages per violation.
Comment: This court ruled that the statute intended for damages “per action” prior to the amendment.
The Florida Senate has proposed a bill (SB 568) which would include voicemail transmissions in the definition of “telephone sales call” such that they would be subject to the state “do-not-call” list law.
Comment: Voicemails are almost certainly already included in that definition, thus this statute will have little practical effect.
A Hawaii court has awarded sanctions against a TCPA plaintiff who settled with one company, then sued the same company in another jurisdiction. Moskowitz v. American Savings Bank. The court awarded the defendant more than $17,000 in attorneys’ fees and costs and ruled the defendants were not required to prove bad faith on behalf of the plaintiff to obtain this award.
An Illinois court has dismissed a professional fund raiser from a suit brought under the TCPA. The plaintiff claimed several fundraising calls were placed to his residential number while his number is on the national “do-not-call” list. The court ruled the national “do-not-call” list does not apply to calls by or on behalf of charities. Spiegel v. Reynolds. The plaintiff argued the charities were “shams” and thus not subject to a legitimate tax exemption.
A bill has been proposed in the Pennsylvania House (HB 448) which would require the Attorney General to establish communications with the Department of Aging to coordinate enforcement of the telemarketing law to protect the elderly.