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A Monthly Review of Issues Affecting Commercial Telemarketing by Copilevitz & Canter, LLC, Attorneys at LawSeptember 2016
On August 19, 2016, FCC Chairman Tom Wheeler addressed remarks to the "robocall strike force" convened by the Commission in an attempt to reduce illegal prerecorded calls. Chairman Wheeler noted the ability to spoof a legitimate telephone number is one of the tactics senders of these calls use.
There are more than 50 petitions pending before the FCC regarding the TCPA. Thirty of these are seeking a retroactive waiver of the opt-out disclosure requirement on fax ads based on previous ambiguous and contradictory FCC orders.
The HIPAA exemption to the cell phone call ban promulgated by the FCC uses narrow language, i.e. "healthcare provider" while HIPAA itself applies both to providers, covered entities, and business associates. Anthem, Inc. has moved for a declaratory ruling that the FCC's use of the language "healthcare provider" would include all entities regulated by HIPAA. It would not create a "patchwork quilt" of regulation where the TCPA would exempt calls from healthcare providers but not their business associates, an illogical result. Comments on the proposal were due September 19, 2016, and reply comments are due October 4, 2016.
Comment: I expect the FCC will grant this petition as it clearly would not exempt calls by a provider, but then deny calls made "on behalf of" a provider, as this make no sense from a consumer protection standpoint.
A debt relief company has been banned from providing future debt relief services. FTC v. Coastal Acquisitions, LLC et al. The companies use radio and Internet advertisements to procure inbound calls where company representatives made misrepresentations. The order imposes a judgment of more than $23.7 million, but defendants will only pay $160,000 based on their financial situations.
Two groups of debt collectors are banned from future debt collection and will pay a settlement of more than $4.4 million to resolve charges. They allegedly violated the FTC Act and the Fair Debt Collection Practices Act. FTC v. National Payment Processing, LLC et al.
Access fees for the "do-not-call" registry will increase from $16,482 to $16,714 for all area codes and from $60 to $61 per area code.
United States Congress
A bill has been proposed in the U.S. Senate (SB 1490) which would direct the FTC to establish an office within the Bureau of Consumer Protection specifically designed to prevent telemarketing and other fraud on seniors.
A California court has dismissed a TCPA case alleging illegal use of an automatic telephone dialing system. Smith v. Aitima Medical Equipment, Inc. Defendant argued that the plaintiff was not harmed by the call and she responded that her battery was drained and she was aggravated by the call such that it was damaged. The Court therefore found "the injury is too de minimis to satisfy standing doctrines and therefore dismissed the case."
Comment: Plaintiff's attorney is well-known and has brought many of these cases, and this is an important victory against "technical violations" or "nuisance" cases.
The Connecticut legislature passed a bill which has been signed by the governor and requires telecommunications carriers to disclose call identifying information including geolocation information upon request from law enforcement officials. (HB 5640). The law is intended to help law enforcement combat telemarketing fraud among other purposes.
Delaware has passed a revision to its state telemarketing registration law. (HB 270). The law makes every registration renewal on or before July 1 of each successive calendar year and imposes a new obligation to update information if any material change occurs within 30 days of the change.
The Director of the Consumer Protection Unit has authority to deny applications based on prior false material statements or prior violations of Delaware or other state or federal telemarketing law.
A Florida district court ruled that a debt collector did not use an autodialer to call the plaintiff to collect a debt owed to Dish Network, and thus did not violate the TCPA. Pozo v. Stellar Recovery Collection Agency. Inc.
The judge ruled that the defendant’s web-based dialing program used its own unique software and hardware and did not incorporate any random or sequential number generator or possess any features that could be activated to enable automated calling and was not an autodialer as defined by the TCPA.
An Illinois judge has approved a class action settlement against Nation Star Mortgage based on alleged illegal prerecorded debt collection calls received by the plaintiffs. Wright v. Nation Star Mortgage, LLC. The final settlement provided for a $12.1 million fund with $3.69 million attorneys' fees payment included in that fund.
Missouri has filed suit against a North Carolina home security company alleging violations of the Missouri no call list. Missouri previously sued the manager of the company for similar alleged violations in 2014 when he worked with a different company.
Comment: If the allegations are proved, Missouri will likely seek a substantial penalty for a repeat offender.
A bill has been proposed in New York (SB 6553) which would raise the civil fine for telemarketing violations to $20,000 per violation. The fine currently is a maximum of $11,000 per violation.
Kari's law, effective September 1, 2016, requires that your outbound systems, if located in the state of Texas, be able to access 911 without a prefix or initial code (e.g. "9"). If your system cannot be reprogrammed to have this capacity, you are required to put a sticker on each phone explaining how 911 can be dialed and obtaining an annual waiver from the state.
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.