April 2021 - Call Compliance News
The U.S. Supreme Court unanimously ruled that the Federal Trade Commission (“FTC”) is not authorized under the Section 13(b) of the FTC Act to seek monetary relief or restitution for violations of the law. AMG Capital Management v. FTC. The FTC is still authorized to seek a permanent injunction and state agencies are still able to seek monetary restitution. The FTC is petitioning Congress to change the statutory language.
Seventh Circuit Court of Appeals
The Seventh Circuit has ruled against a company which sent out unsolicited faxes for dental industry services. Mesa Laboratories, Inc. v. Federal Insurance Co. The company requested insurance coverage for common law claims (such as conversion of assets or trespass) arising out of Telephone Consumer Protection Act (“TCPA”) claims for unsolicited faxes. The court ruled that the insurance policy excluded TCPA claims and any common law claims arising out of the same violations.
A bill in the Connecticut House (HB 6607) would create an affirmative defense for certain businesses in data breach claims if they create and comply with a written cybersecurity program.
A Delaware court ruled that a government-backed debt collector could be sued for calls made pursuant to the TCPA government debt collection exemption to the TCPA’s cell phone call ban. Franklin v. Navient, Inc. This exemption to the cell phone call ban was struck down by the Supreme Court in Barr v. Am. Ass’n of Political Consultants, Inc. ruling the exemption was unconstitutional and severed it from the cell phone call ban. The calls in question were made during the time period when the exemption was valid.
A Florida court has sent a TCPA case back to state court after both defendant and plaintiff failed to establish the constitutional injury such that the federal court could have jurisdiction. Harris v. Travel Resorts of America. Plaintiff had alleged he was forced to expend time listening to voicemails and the voicemails drained her battery and caused her wear and tear.
Comment: The ruling is mixed for both sides as now the plaintiff can proceed in state court, usually more favorable to plaintiffs than federal courts, but the federal court has already ruled that she suffered no injury such that the federal court would have jurisdiction, i.e. very little, if any actual injury.
A bill has been proposed in the Florida Senate (SB 1120) which would amend Florida’s telemarketing statute to allow calls using an automated system “for the selection or dialing of telephone numbers or the playing of a recorded message” without the prior express written consent of the called party. The law would also provide a “rebuttable presumption” that a telephone call to a Florida area code was to a person in the state of Florida at the time of the call. The statute would provide for an individual claim of $500 per violation or treble damages for knowing violations.
Comment: The statute appears to be a response to Facebook v. Duguid, narrowing the definition of ATDS to systems using a random or sequential number generator.
A New Jersey court has refused to allow counterclaims against a serial litigant even after he dismissed all plaintiffs from his lawsuit. Zelma v. Audina Hearing Instruments, Inc. The defendants had served plaintiff with a “Rule 11” letter demanding he withdraw unsupported claims. Zelma claimed he never received the letter. While pro se litigants are not shielded from sanctions under Rule 11, they are given greater leeway. The court gave him this leeway even though he has filed scores of cases through the years. Defendants also made counterclaims against plaintiff alleging malicious abuse of process. The judge denied these claims because they did not include them in their first amended answer and waited until plaintiff dismissed his claims against the defendants to bring the counterclaims.
A Pennsylvania court dismissed a “do-not-call” registry class action. Perrong v. South Bay Energy Corp. Plaintiff claimed that all numbers on the “do-not-call” registry could be certified as an internal “do-not-call” class, even if the owners had not made a “do-not-call” request. The court ruled that this understanding of 47 C.F.R. § 64.1200(d) was not consistent with the language of the regulation.
A court has lifted a stay in a TCPA class action brought against a cannabis dispensary. Levitt v. Have a Heart Compassion Care, Inc. The defendants had moved for a stay based on Facebook v. Duguid and now that the Supreme Court has favorably ruled that the definition of automatic telephone dialing system is limited, has lifted the stay and orders the case to continue.
A West Virginia court has denied a motion to dismiss in a TCPA claim brought against telecom providers who allegedly delivered calls to the plaintiff which contained “spoofed” caller ID information. Mey v. All Access Telecom Inc., et al. The defendants claimed the court did not have jurisdiction as they did not make the allegedly illegal calls. The plaintiff alleged they knew illegal “spoofed” robocalls were being transmitted through their network using invalid numbers which have been easily blocked. The court agreed and refused to dismiss the suit holding her allegations did make a claim against the telecom companies and that carriers were not immune from TCPA liabilities. The court also ruled that the Barr v. Am. Ass’n of Political Consultants, Inc. did not mean the TCPA was unenforceable from 2015 through 2020, while the government debt exemption was in place.