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A Monthly Review of Issues Affecting Commercial Telemarketing by Copilevitz & Canter, LLC, Attorneys at LawDecember 2014
Thirty-nine Attorneys General have sought an opinion from the FCC regarding whether telephone providers can legally provide call blocking technology to combat unwanted telemarketing. Some telecom industry executives have said that phone companies have a legal obligation to complete phone calls.
Comment: The number of petitions requesting action from the FCC on TCPA related issues continues to increase.
The FCC has released its data book summarizing the national "do-not-call" registry. More than 217 million numbers are on the list. The agency received more than 3.2 million complaints about unwanted telemarketing calls in the fiscal year 2014.
The FCC has received eight petitions seeking waiver of the Commission's disclosure rules for faxes. If granted, the FCC would give a retroactive exemption to these senders of faxes for disclosures not included on faxes to persons who expressly requested them. The FCC ruled that these disclosures are required on faxes but has said it may grant a waiver for companies which seek it prior to April 30, 2015.
Comment: We are still waiting on the FCC's rulings regarding automatic telephone dialing systems and calls to cell phones. Hopefully, the FCC will grant retroactive relief with regard to those unclear definitions, as well.
The FTC has obtained a temporary restraining order shutting down two companies which allegedly telemarketed text support products to fix nonexistent computer problems. FTC v. Boost Software, Inc.; FTC v. Inbound Call Experts, LLC.
Comment: Obtaining a temporary restraining order is "kicking the door down" and a remedy used only in rare circumstances when the FTC believes that fraud is being committed or other serious violations of law.
The FTC has obtained a settlement with an Orlando based company which used recorded telephone calls to sell medical alert systems. FTC v. Worldwide Info Services, Inc.
The FTC has settled a lawsuit against T-Mobile for $90 million alleging violations of "cramming" restrictions on subscribers' mobile phone bills.
Twitter has asked a California court to dismiss a class action brought against it by users who allegedly did not consent to receive text messages from Twitter. The numbers were originally provided by a previous subscriber to the number which had since been disconnected and reassigned.
A California appellate court has reversed its decision to certify a class of persons whose calls were allegedly illegally monitored by a pay day loan company. Kight v. CashCall, Inc. The court ruled that it would have to make an individualized inquiry into each person’s expectations of confidentiality of the call and the class, therefore, could not be maintained.
Comment: The California call monitoring statute has been used to obtain multi-million dollar settlements. It appears, however, that federal and state courts are beginning to look at these massive class actions with skepticism.
The Eleventh Circuit Court of Appeals has ruled that a Rule 68 offer does not make the claims of a class representative moot such that the class could not proceed. Jeffrey Stein, D.D.S. v. Buccaneer's Limited Partnership, (December 1, 2014).
Comment: If you are a TCPA defendant, you should quickly determine if your circuit allows a Rule 68 Offer of Judgment. Because the circuits are split on this issue, the Supreme Court will likely resolve this matter (and given the Supreme Court's hostility to class actions, may issue a ruling in favor or defendants in these abusive suits).
Illinois has asked a federal judge to dismiss a purported class action against it, alleging violations of the TCPA, arguing that a court would need to make an individualized inquiry into whether or not each alleged class member received a call and the case, therefore, is not appropriate for class action status. The case involves individual agents of State Farm who hired an automated call company to place calls on their behalf, which the Plaintiff argues makes State Farm vicariously liable for the agent’s actions. G.M. Sign, Inc. v. State Farm Automobile Insurance Co.
A Minnesota court has refused to dismiss a group of class actions brought against Target Corporation in the wake of its data security breach. The Court ruled that the plaintiffs had pled sufficient facts to show negligence in violation of state law regarding credit card security and that the litigation could proceed.
A Missouri court has ruled that a consumer could revoke consent to be called on his cell phone. Buchholz v. Valarity. The consumer had been called after receiving medical services and defaulting on the bill for those services.
AT"T Mobile has sought approval of a $45 million class action settlement. The plaintiffs alleged that they received calls from AT"T but were not AT"T subscribers, likely as a result of disconnected or reassigned telephone numbers.
A bill has been proposed for the Pennsylvania Senate (SB 1510), which would include business telephone numbers in the state's "do-not-call" list provisions. Pennsylvania uses the federal list, so in the past, this bill would include business numbers on the federal "do-not-call" list.
Comment: The bill would be unconstitutional as the national "do-not-call" list was upheld based on residential privacy interests.
A Texas court has ruled that a TCPA claim could proceed despite the fact that the Complaint did not contain the telephone number called. Crawford v. Target Corp. The judge allowed the claim to continue. She alleged receipt of more than 58 calls to her cellular telephone number using an automatic telephone dialing system.
The state of Wisconsin has relented on its request for a "SAN" for all registered companies in Wisconsin. Wisconsin's "do-not-call" list has been eliminated, but the state still "registers" all telemarketers and requires a $20,000 fee for that registration. Many entities are exempt from obtaining a ban, but still were required to provide it to Wisconsin, an impossibility. This is no longer a case and entities without a SAN can simply indicate that they are exempt from obtaining a SAN in their Wisconsin registration.
Comment: This does not alleviate the fact that Wisconsin charges approximately $20,000 for a list that no longer exists.
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.