August 2021 - Call Compliance News
Federal Communications Commission
The Federal Communications Commission (“FCC”) has proposed a $5 million fine against two individuals and their company for illegally making prerecorded calls without consent in violation of the Telephone Consumer Protection Act (“TCPA”). In the matter of: John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman & Assoc., LLC. The prerecorded messages told potential voters that if they voted by mail, their information would be used by the police department to track down old warrants and credit card companies to collect outstanding debts. These claims were false.
An entity named Enterprise Communications Advocacy Coalition has requested to issue a declaratory ruling from the FCC seeking preemption of Florida’s “mini” TCPA. The organization argues that Florida’s law imposes rules which are more restrictive than the TCPA and therefore should be preempted by federal law.
Comment: Despite the language of the drafters of the TCPA regarding preemption, the FCC has not acted on other requests for preemption in the past.
Another petition has been filed by Perdue for Senate requesting a ruling that the TCPA does not regulate “ringless” voicemail.
Comment: Other entities have requested similar rulings but withdrew their requests prior to a decision by the FCC. This is another tough issue for the petitioner to win, as it essentially is asking the FCC to rule that a voicemail is not a “telephone call” as the term is used in the TCPA. Courts which have considered this question have ruled a voicemail is a telephone call.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has announced the fee to access the National Do Not Call Registry will increase in fiscal year 2022 to $69 per area code (an increase of $3 per area code) or $19,017 (up from $18,044) for access to the entire list.
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals has ruled that the TCPA’s automatic telephone dialing system (“ATDS”) and prerecorded call restrictions apply to prerecorded calls offering the recipient employment (“job recruitment calls”). Loyhaydem v. Frazier Financial Insurance Services, Inc.
Comment: While the “do-not-call” provisions would not apply to a job recruitment call where no fee is charged to the applicant, the ATDS and prerecorded restrictions in 47 U.S.C. § 227(b)(1)(A) apply to “any call” including recruitment calls, political calls, charitable calls etc. Emergency calls and calls at the request of the recipient are the only exceptions to that section of the TCPA.
An Arizona court has dismissed a putative class action brought against a cruise line for actions plaintiffs claimed were made on its behalf by an unknown “telemarketing agent”. Winters v. Grand Caribbean Cruises, Inc. Plaintiffs alleged the cruise line had actual knowledge of the actions of the “telemarketing agent” and were therefore vicariously responsible for violations by the “agent” of the TCPA. The court disagreed and ruled that the cruise line (“the principal”) did not have any right to control the actions of the unnamed “agent” other than conclusory allegations in the complaint.
Comment: We recommend a business implement contractual and behavioral protections to protect itself from allegations that it is responsible for illegal telemarketing calls to a given person. Plaintiffs often will blame all the calls they receive in a given time period on an entity that responds to a demand letter despite no connection between those calls and the company.
A company has reached a $75.6 million settlement in a TCPA class action. Perez v. Indian Harbor Insurance Co. The settlement was more than 75 times the insurance policy limit and the defendant alleged the insurer acted in bad faith based on failure to settle the case at an earlier mediation for a much lower amount. Class members will receive an average of more than $700 each based on more than 500,000 illegal calls.
Comment: The earlier record of $75.5 million was against Capital One from 2014. The defendant in this case, Rash Curtis, is a debt collector.
A bill has been introduced in the New York General Assembly (AB 8246) which would exempt real estate brokers from the state’s ban on telemarketing calls during declared emergencies.
A student loan service received a favorable verdict in a case alleging a law firm improperly instructed individuals to stop paying debts and request no further calls in an effort to create “do-not-call” claims. Navient Sols. v. Law Offices of Jeffrey Lohman. Navient was awarded more than $1 million in damages and the defendant has two weeks to file post-trial motions.
Comment: The Defendant allegedly instructed the debtors to make ambiguous “do-not-call” requests, then sue for subsequent calls. This is not the first time Navient has responded aggressively in court to TCPA claims it considered to be abusive.