March 2021 - Call Compliance News
The U.S. Senate is considering a bill (SB 594), the Anti-Spoofing Penalties Modernization Act, which will increase the penalties for use of illegal “spoofed” caller ID. The bill is sponsored by two Republican and two Democratic senators. The penalties would increase from $10k to $20k per violation.
A California court has refused to dismiss a purported class action against a pest control company, which allegedly sent unsolicited faxes to plaintiffs and a class of people. Carranza v. Terminix. The court held that plaintiff is entitled to discovery regarding its class action allegations.
A bill is being introduced in the Florida Senate (SB 1682) which would modify Florida’s telephone solicitation law to allow prerecorded telephone solicitation calls only with prior express written signed consent.
Comment: This restriction would duplicate in large part the restrictions of the Telephone Consumer Protection Act (“TCPA”).
A Kansas court has ordered notifications in a fair labor case to class members be sent out by text. James v. Boyd Gaming Corp.
Comment: If the numbers texted were not provided to the defendant with prior express consent, these texts would be illegal and open defendant to a TCPA illegal text class action.
A bill has been proposed in the New York General Assembly (AB 6756) which would allow real estate calls by licensed companies during a state of emergency even though other sorts of telemarketing calls are banned.
Comment: A content-based exemption like this raises constitutional questions regarding the statute, and is unlikely to be passed.
A Texas court has dismissed a TCPA claim brought against two companies and their individual officers because neither individual defendant lived or worked in Texas, and neither company was incorporated or headquartered there.
Comment: TCPA plaintiffs will often sue in their home jurisdiction. Defendants should look not only to the merits of their defense, but also whether the court where the lawsuit is filed has jurisdiction over corporate or individual defendants. This issue is being raised more and more often by TCPA defendants.
A Washington court has ruled that texts advising consumers of curbside prescription pick-up were emergency texts in the COVID-19 pandemic, and allowed under the emergency exemption to the TCPA cell phone call ban. Gabertan v. Walmart, Inc. The court rejected plaintiff’s argument that the text was just a subterfuge for advertising. The court also ruled that a link to Walmart’s pharmacy website did not make the message “advertising or telemarketing”.
Comment: This is really reaching on the side of the plaintiff’s bar who clearly saw a deep-pocket TCPA class action defendant, not an uncommon site when legitimate businesses are aware of the catastrophic damages TCPA claims involve.
Telecommunications carriers are rolling out “10DLC” restrictions to monitor peer-to-peer (“P2P”) texting platforms.
Each carrier is rolling out its own set of rules, which can include a registration, a “trust score” applied by the carrier to a given campaign, and blocking of messages.
Registration for AT&T’s platform must be completed before June 1, 2021 to avoid higher fees and more stringent text message blocking.
Comment: The ability of the carriers to restrict text messages does not depend on whether those text messages are illegal under the TCPA or not. The Federal Communications Commission has allowed carriers to impose these restrictions because it ruled that texting is an “information service” rather than a “common carrier” service like telephone calls.
It remains to be seen if the restrictions will be challenged, as well as how they will actually be implemented on legal messages, such as P2P get out the vote, shipping notification, and other non-marketing messages.
Please contact me if you would like to discuss application of these rules to your application.