December 2021 - Call Compliance News
Federal Trade Commission
The Federal Trade Commission (“FTC”) has sent more than $1.8 million to consumers received in a settlement with Lifewatch, which the FTC accused of using illegal prerecorded calls to market medical devices. The complaint also accused the company of misrepresenting its services as “free” when they were not.
The FTC has released its summary of “do-not-call” registry activity including the size of the list—nearly 245 million numbers. The FTC received 3.4 million “do-not-call” complaints in 2021, up from 2.8 million in 2020. See https://www.ftc.gov/news-events/press-releases/2021/11/ftc-releases-2021-do-not-call-registry-data-book-reports.
Comment: The number of complaints means, to me, “do-not-call” registry enforcement will be a priority of the FTC for years to come.
An Indiana court has granted a motion to compel discovery against an entity which allegedly sent text messages to a plaintiff in violation of the “do-not-call” list. He is seeking class action status for the group of people who received these texts. Fralish v. Digital Media Solutions, Inc. The court granted almost all of plaintiff’s requests, including class-related data, such as telephone numbers to which Digital Media sent text messages and the number of text messages sent.
Comment: Magistrate Judge Michael G. Gotsch repeatedly noted defendant’s boilerplate objections to discovery and found those discovery objections inadequate. It is very important that your objections to discovery be carefully crafted to avoid consequences like this.
A Maryland appellate court has reversed a trial court’s decision, holding that private plaintiffs could sue for failure to disclose the identity of a telemarketing call. Worsham v. LifeStation, Inc. The court ruled, however, that there was no private cause of action for failure to include a key press opt out in a prerecorded call, which is a restriction found in a different section of the regulations than the disclosure requirement.
Comment: More cases are finding that there is a private cause of action, not just for telephone calls, but for the content of those calls if they fail to comply with the TCPA. You should carefully review the content of your calls to ensure your communications comply.
New York’s governor has declared a state of emergency based on COVID-19 transmission rates and hospitalizations in the state. This triggers a ban on unsolicited telemarketing calls pursuant to New York’s curfew statute. N.Y. Gen. Bus. Law § 399-z.
Comment: This is the longest emergency I have seen to date (more than 45 days), and the first based on something other than weather. Note, however, that calls placed with express consent or an established business relationship are not subject to the ban.