October 2021 - Call Compliance News
Federal Communications Commission
The FCC has proposed new restrictions on foreign calls into the United States it says are aimed at illegal robocalls. See https://docs.fcc.gov/public/attachments/FCC-21-105A1.pdf. Domestic entities carrying that telecommunications traffic “gateway providers” will be required to implement STIR/SHAKEN caller ID and authentication on foreign-originated calls.
Acting Chair Jessica Rosenworcel issued a proposed rule requiring wireless providers to block illegal texts. See https://www.fcc.gov/document/acting-chair-rosenworcel-proposes-rules-combat-rise-robotexts. The full commission is required to vote on the document which would apply caller ID standards to text messaging.
The FCC issued cease and desist letters to three companies that originate illegal robocalls, most of which come from overseas. The companies are now required to investigate and, if necessary, cease transmitting the calls, as well as respond to the FCC within 14 days regarding measures taken to prohibit illegal calls. The letters to Duratel, Primo Dialler, and PZ/Illum Telecommunication can be reviewed here: https://www.fcc.gov/document/fcc-issues-robocall-cease-and-desist-letters-3-more-companies.
Department of Justice
The Department of Justice has moved to enforce a $9.9 million penalty imposed by the FCC against Scott Rhoades, a Montana resident who made 4,959 illegal robocalls using falsified caller ID information. The calls targeted Iowa residents after a local murder and allegedly included a message that the murder had been committed by “…Aztec ancestors”. I doubt the individual has the ability to pay this penalty, but it is noteworthy that the FCC imposed a penalty of nearly $2,000 per call.
A court approved a Telephone Consumer Protection Act (“TCPA”) text settlement which included a payment of $198 per text message received for the class members. Saliba v. KS StateBank Corp. The case only involved 3,900 total text messages. The size of this class in not large although the award per text is quite large.
A plaintiff has now argued that a text is an “artificial” voice such that the TCPA cell phone call ban would allow a text only with prior express consent. Risher v. Adecco, Inc. The judge allowed plaintiff to make the claim while noting “this novel theory may ultimately fail as an unsupportable application of the statutory language.”
Comment: The judge did not dismiss the argument at the pleading stage, however, plaintiff’s allegations are assumed to be true at this stage and only dismissed if unsupportable even if true. We will track the progress of this argument.
A court has granted summary judgment to a home lender and a lead company because plaintiff could not prove they gave a subcontractor the authority to violate the TCPA when they purchased leads from that subcontractor. Schick v. Caliber Home Loans, Inc. The court ruled that neither company could be directly liable under the TCPA because they did not place calls to Schick. Under principles of agency law, the court noted the subcontractor did not have actual or apparent authority, nor were the subcontractor’s acts ratified such that the lender could be held responsible.
Comment: Here, when the lender heard from customers that they had not consented to be called, it investigated, and when complaints continued, it stopped purchasing leads from the vendor. This is exactly the course of action you should take if you receive complaints about the actions of one of your business partners to preserve your defense that the vendor does not act on your behalf such that you are liable for their actions.
A California court has decertified a class of persons who alleged they received illegal faxes. True Health Chiropractic, Inc. v. McKesson Corp. The court ruled that the faxes received by online service are no longer actionable under the TCPA and that the class in this case both included those faxes and could not separate them from faxes received by a stand-alone machine. Because there was an individualized question on whether each class member received the fax via machine or online, the class could not be certified.
Faxes are not sent as commonly as they used to be, so the law firms acting as plaintiffs’ attorneys behind these cases are facing a dwindling number of clients. These cases have been extremely successful in the past, and this decision will likely be appealed by plaintiff’s attorney.
A judge has ordered Allstate Insurance Company to produce its entire internal “do-not-call” list after plaintiff argued Allstate was not managing its vendors’ compliance with “do-not-call” requests made to other vendors. Hossfeld v. Allstate Insurance Co. Hossfeld alleged he received at least 11 calls to his cell phone from Allstate or its vendors, and that the callers failed to identify the purpose of the call. The court ordered Allstate to produce its internal “do-not-call” list under the conditions that plaintiff’s attorneys are barred from contacting any person on the list until and if the class is certified and that they are barred from using the list for any purpose in the event the class is not certified.
Comment: A business’s customer list is probably one of the most confidential and valuable assets it has, so this order rightfully should terrify any business which contacts is consumers by telephone. Please contact me if you would like to discuss compliance with this or other portions of the TCPA.
A bill has been proposed in the Massachusetts House (HB312) which would prohibit misleading, false, or inaccurate caller identification, causing a Massachusetts area code to be transmitted unless the caller maintains a physical presence in Massachusetts or obtaining information from someone to pose as that person and making or placing another call or text message.
Comment: The law allows for a private cause of action for $10,000 for each call or text and is like a law adopted in South Carolina.
A New Jersey company has successfully argued its individual owner is not the proper defendant in a TCPA case because he is not personally liable for the acts of the corporate defendant. Rucker v. National Automotive Financial Services, LLC. The court noted plaintiff failed to plausibly allege the individual had any direct personal participation in the calls directed at the plaintiff. The court also argued that it could not “pierce the corporate veil” to impose liability because NAFS was a proper corporation and not the alter ego of the individual.
Comment: Plaintiffs often allege individuals and related and unrelated companies are all responsible for calls they received. These companies should look carefully at decisions like this to narrow the complaint to entities which made the calls and reject the plaintiffs’ arguments of agency or strict liability.
A bill has been proposed in the New York Assembly (AB 8319) that would require calls to disclose that call recipients may request to be added to the caller’s internal “do-not-call” list at the outset of the call.