March 2022 - Call Compliance News
U.S. Supreme Court
The United States Supreme Court has declined to hear an appeal of Realgy, LLC v. Lindenbaum, which ruled the Telephone Consumer Protection Act (“TCPA”) was enforceable even though the court later found parts of it to be unconstitutional (from 2015 to 2020, when Barr v. Am. Ass’n of Pol. Consultants, Inc., severed the unconstitutional debt-collection exemption).
Comment: For now, that means automatic telephone dialing system (“ATDS”) cases from calls during that period can proceed unless the Supreme Court reviews this question.
An Alabama court has enforced an arbitration agreement in a purported TCPA class action. Cooley v. KDVH Enterprises, LLC. The defendant purchased an auto dealership which had sold the plaintiff a car. The court ruled that as the purchaser of that dealership, the defendant stood in its shoes and the contract for the sale of the auto contained an enforceable arbitration clause.
Comment: It is extremely important that your contract and/or terms and conditions contain enforceable arbitration language. Please contact me if you would like to discuss.
As you know, the state of Florida passed a telephone solicitation act which bans the use of an “automated system” to make calls without express consent. This term is undefined, but the legislative history defines it as broader than “automated telephone dialing system” as used in the TCPA and interpreted by the Supreme Court in Facebook v. Duguid. For this reason, companies which attempt to comply with the law need a different dialer solution in Florida than the rest of the country.
This legislative session, however, the Florida legislature is considering bills which would amend the new Florida law. There are competing bills, however, and the one that passes will determine whether Florida’s rules become stricter or not. (HB 1095, SB 1564).
A court has awarded a TCPA plaintiff $195,000 in damages for 26 prerecorded calls. Perrong v. MLA Int’l, Inc. This vastly exceeds $500 per call as provided in the statute.
Comment: Plaintiff alleged multiple violations of the TCPA in each call and the Defendant did not show up in court to defend the case. The judge therefore allowed the Plaintiff to claim treble damages for multiple violations in each call. Although defending a TCPA case may not be fun, the alternative, i.e., default, is always much worse.
A Florida court has ruled that a prerecorded survey was still subject to the TCPA’s restrictions on the use of prerecorded calls to cell phones. Duverger v. Research Strategies, Inc. The court ruled the TCPA prohibits almost all prerecorded calls to cell phones, not just advertising calls, and dismissed Plaintiff’s claim to the contrary.
Comment: 47 U.S.C. § 227(b) is the restriction on calls to cell phones in the TCPA and it applies to all calls, not just solicitation calls or calls to consumers. A survey call to a business cell phone, for example, is subject to this restriction absent some other exemption.
A Florida court held that a healthcare company cannot use the “emergency purposes” exemption to TCPA requirements after the recipient has requested not to receive further calls. Farhat V. Unique Healthcare Systems, Inc. Defendant claimed that it sent text messages regarding COVID-19 testing, and thus was not subject to TCPA restrictions even after Plaintiff requested to no longer receive text messages. The judge cited several cases confirming that the “emergency purposes” exemption is not valid once a “do-not-call” request has been made.
An Illinois court has allowed a counterclaim against a well-known pro se TCPA plaintiff. Anthony v. F.S.B. The bank alleged Anthony visited a website and entered a fake name to generate telemarketing calls to his actual number. The judge ruled F.S.B.’s claims were properly baited in the counterclaim and that the counterclaim for fraud could proceed to discovery.
An Illinois court has ruled that a fax requesting services from a chiropractor was not an advertisement subject to the TCPA’s fax restrictions. Dr. Richard L. Thalman v. First Hospital Laboratories, Inc.
Comment: More and more cases are ruling that communications offering to purchase something from a recipient are not solicitations as defined in the TCPA. This is applicable to many types of calls, for example, offers to purchase someone’s home. These are not “telemarketing” as defined in the TCPA.
A New York court has allowed a fax class action to continue, rejecting three of Defendant’s arguments: 1) that its offer to settle with the Plaintiff made the class moot; 2) that it substantially complied with the opt-out provisions of the TCPA; and 3) that the class was not certifiable.
Making an offer to a Plaintiff to “moot” class claims has specifically been rejected by the Supreme Court. More importantly, the court ruled that substantial compliance with the opt-out provisions of the fax rules did not mean there was no TCPA claim. Finally, the court rejected the defense class arguments holding they were premature and needed to be addressed after discovery.
Comment: It is extremely important that your telephone and fax communications comply with the letter of the TCPA, as “substantial” compliance can be insufficient.
A court issued a default judgment to a serial pro se plaintiff and awarded $1,500 per call. Madsen v. Harris. “When a default has been entered … the court must take the plaintiff’s actual allegations as true.”
In a mixed case for Defendants, a court allowed a claim to proceed because the Plaintiff sufficiently alleged use of an ATDS, but the court ruled there is no private cause of action for failure to include a disclosure in a prerecorded message. Laccinole v. Navient Sols., LLC. The court also dismissed his “do-not-call” list allegations as the calls were not solicitations but rather attempts to collect a debt.
A court has dismissed a claim brought by another serial plaintiff, Craig Cunningham. Cunningham v. United States Auto Protection, LLC. Defendant argued that it was not subject to jurisdiction in Texas as the Plaintiff could not allege a substantial connection with Texas.
Comment: The judge dismissed the claim without prejudice which means that Cunningham can refile in the proper jurisdiction.
Washington has passed changes to its telephone solicitation laws (HB 1497), which await signature from the Governor. The rule includes a “permission to continue” disclosure for requests for donations and an “immediate disconnect” requirement if the called party states they want to end the call.