June 2011 - Call Compliance News
In this issue:
- A TCPA class action complaint has been filed against Twitter alleging that the text messages Twitter sends to confirm an opt-out (of text messages) violates the TCPA.
- A Maryland bill has been enacted in the Maryland Senate (SB 741) which would require registration for entities offering debt settlement services.
- A Pennsylvania court has dismissed a plaintiff’s allegations against a debt collector for violation of the TCPA and other statutes. The court ruled that the plaintiff did have standing to sue under the TCPA, even though she was the unintended recipient of calls.
A Judge has ruled that Dish Network is required to give the Justice Department documents in response to discovery requests for all its dealers. The FTC, through the Justice Department, had alleged that Dish Network was responsible for violations of the Telemarketing Sales Rule by its third party telemarketers.
A TCPA class action complaint has been filed against Twitter that alleges the text messages Twitter sends to confirm an opt-out (of text messages) violates the TCPA. The plaintiffs had previously requested text message notifications from the Defendants but allege that their opt-out cancelled any legal ability of Twitter to text me and that such texts violated the TCPA. Moss, et al. v. Twitter, Inc. Similar suits have been filed against other social network sites.
A Georgia court has ruled that a TCPA plaintiff did not need to prove that defendant knew its calls violated the TCPA for it to obtain trebled damages for “knowing” violations of the call. Steward v. Regent Asset Management Solutions. The court concluded that “knowing” applied to the act itself, not knowing that the action was illegal.
An Illinois court has certified a class of recipients of faxes to be illegal under the TCPA. CE Design Limited v. King Architectural Metals, Inc.
Kentucky has passed a law (HB 382) which prohibits solicitation calls to consumers for thirty days following a motor vehicle accident for services related to that motor vehicle accident (e.g. chiropractic services, legal services, etc.). A person who knowingly violates the new law is subject to a $1,000 fine.
Elaine Thibodeau, with the state of Maine, who has for many years administered the State of Maine’s transient seller’s registration program is leaving the agency and will no longer supervise this program.
A bill has been enacted in the Maryland Senate (SB 741) which would require registration for entities offering debt settlement services. This term is defined to include any service represented to renegotiate, settle, reduce, or in any way alter terms of payment of debts between a consumer and unsecured creditors.
A bill has been proposed in the Missouri Senate (SB 132) which would prohibit marketers of extended warranties from making any false or misleading statement during telemarketing regarding affiliation with a particular motor vehicle manufacturer or dealer or expiration of the motor vehicle owner’s current warranty.
In addition to New York’s “do-not-call” enforcement, with the Division of Consumer Protection, being transferred by statute to the Department of State, Lisa Harris, who previously was an enforcement attorney for “do-not-call,” has been promoted to director of the Division of Consumer Protection. This promotion is well deserved as Ms. Harris is in the upper tier of regulators in this area.
A bill has been proposed in the New York General Assembly (AB 3224) which would prohibit “cramming,” i.e. unauthorized charges on a consumer’s telephone or cable television bill.
A bill has been proposed in the Oklahoma Senate (SB 398) which would amend the state’s telemarketing law to include text messages within the scope of the act. Senders of text messages would be required to register as commercial telephone sellers in the state unless otherwise exempt.
The Pennsylvania General Assembly is considering a bill (HB 1545) which would create a “do-not-call” list for prerecorded political calls.
Pennsylvania is considering another bill (HB 247) which would add text messages to the definition of “telephone call” for purposes of the state’s registration requirement.
A court has dismissed a plaintiff’s allegations against a debt collector for violation of the TCPA and other statutes. The court ruled that the plaintiff did have standing to sue under the TCPA, even though she was the unintended recipient of calls, but that the defendant’s debt collection calls were not calls including an unsolicited advertisement and, therefore, were not actionable. Anderson v. AFNI, Inc.
Tennessee amended its “do-not-call” law to allow government telephone subscribers to place their telephone numbers on the state “do-not-call” list. This law is likely unconstitutional as the “do-not-call” list is based on privacy rights, which corporations or governmental entities can not have. 2011 Tennessee Public Act, 177. This restriction goes into effect on January 1, 2012 and specifically amends the definition of “residential subscriber” to include state government telephone subscribers.
A Texas Court has ruled that the TCPA prerecorded restrictions did not apply to debt collection calls.
The Vermont House of Representatives has passed a bill (HB 254) which would modify the State’s Security Breach Notification Act regulating businesses which own or collect personal information regarding Vermont citizens. The bill will now go to the Senate for consideration. If adopted, the bill would require that businesses which have security breaches promptly notify the attorney general as well as affected consumers.
Virginia court has dismissed a claim against Dish Network (Zhu v. Dish Network), which alleged Dish Network was responsible for the actions of its third party marketers. The court ruled that the Virginia Telephone Privacy Act did not impose strict liability on Dish Network for the actions of its independent contractors.
Wisconsin General Assembly is considering a bill (AB 111) which would ban prerecorded calls to persons on the state “do-not-call” list.
A federal court in Wisconsin has considered whether a class action TCPA defendant can end a lawsuit by offering the individual named plaintiff a full settlement. Wilder Chiropractic, Inc. v. Pizza Hut of Southern Wisconsin, Inc. The court ruled that such an offer does not end the class action nature of the suit.