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A Monthly Review of Issues Affecting Commercial Telemarketing by Copilevitz & Canter, LLC, Attorneys at LawAugust 2014
A group of 15 members of the House of Representatives has written to the Chairman of the Federal Communications Commission requesting reform of the Telephone Consumer Protection Act and the potentially catastrophic class action damages available for violations which cause no consumer harm. The group requests that the FCC modernize the TCPA rules given that 96 percent of adults are mobile subscribers and 54 percent of households are either entirely or mostly wireless subscribers.
The FTC has filed a motion seeking protective order, closing an entity which allegedly sold fraudulent debt relief and credit repair services to consumers. The court issued a temporary restraining order on August 21, 2014, closing the doors on "American Bill Pay Organization."
Comment: A temporary restraining order is the legal equivalent of kicking the doors down on a business. Usually the FTC only does this in cases of fraud.
The FTC has announced updated fees beginning October 1, 2014, for access to the national "do-not-call" registry. Companies will now pay $60 per area code (an increase of $1) up to a maximum charge of $16,482 for all area codes (an increase of $260 from the previous maximum).
The FTC has announced prize winners for its "Zapping Rachel" contest designed to combat illegal prerecorded telephone calls.
Comment: It remains to be seen whether the FTC will do anything to combat illegal spoofing in prerecorded calls other than burdening legitimate companies with additional regulations.
A California court has denied a motion to dismiss a class action brought by an individual against a cruise line. Lively v. Caribbean Cruise Line. The plaintiff alleged that she was called on her cell phone using an automatic telephone dialing system. At least five other reported class actions have been filed against the defendant but the court denied a motion to stay the case based on those other class actions.
A class action settlement has been approved by a court in a case against Bank of America. Rose v. Bank of America Corporation, et al. Plaintiffs alleged that they were called on their cell phones using an automatic telephone dialing system and/or artificial prerecorded voice for debt collection purposes. The settlement involves a payment of $32 million by the bank. The court ruled, however, that class counsel included an unreasonable number of hours in their claim for attorney's fees.
A California court dismissed a TCPA case against a defendant that had no offices or staff in California. Freeman v. Specialty Retailers, Inc. A TCPA defendant should look at jurisdictional issues to determine if the plaintiff has filed in the correct court in addition to disputing matters on their merits.
A district judge has refused to grant a motion to dismiss to a business which allegedly placed illegal calls to a consumer's cell phone for debt collection purposes. Espejo v. Santander Consumer USA, Inc. Santander argued that the case should be stayed based on the FCC's consideration of the definition of automatic telephone dialing system. The court denied the claim because the case had been ongoing for more than three years and no FCC action was immediately forthcoming.
Kansas Attorney General, Derek Schmidt, has sued a Utah Medical Devise Provider for violation of the Kansas Do-Not-Call Act. The calls claimed that the consumer would be eligible to receive a medical alert device but was actually a sales call allegedly in violation of Kansas' Do-Not-Call Act.
A Michigan court has held that an offer of judgment made by a defendant in a TCPA case made plaintiff's case moot and dismissed the action. APB Associates v. Bronco Saloon Inc.
Missouri's Attorney General urged the FCC to allow phone companies to use call blocking technologies to block sales calls at customer's request. Thirty-seven other state Attorneys General signed the letter to the FCC.
The Missouri Attorney General reached settlements with two residential alarm companies settling alleged violations of Missouri's "do-not-call" law.
Comment: Missouri still maintains its own list and its established business relationship exemption is shorter than the federal period. You should be careful regarding compliance with state law especially when it differs from federal restrictions.
A New Jersey court has denied the motion to dismiss a putative class action alleging violations of the TCPA. Dobkin v. Enterprise Financial Group, Inc. The company offered extended auto warranties and allegedly did not honor a company-specific "do-not-call" request made by the plaintiff.
An Ohio court has ruled that a debtor who provided his cell phone to a creditor on numerous loan applications expressly consented to be called at that number. Hill v. Homeward Residential. The court, however, agreed with the plaintiff that he may not have consented at the time defendant obtained his cell phone from other sources.
Telemarketing Connections® is a monthly publication of Copilevitz & Canter, L.L.C., a law firm with offices in Kansas City, Missouri, and Washington, D.C. The editor of this newsletter, William Raney, Esq, can be reached in our Kansas City office at (816) 472-9000 or by email at firstname.lastname@example.org. Please contact Allison Garcia at email@example.com if you would like to subscribe to this newsletter in either electronic or hard copy format. The authors make every attempt to provide current, accurate information, but Telemarketing Connections® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing Connections®©2019, Copilevitz & Canter, L.L.C.