February 2018 - Call Compliance News
Federal Trade Commission
The Federal Trade Commission (“FTC”) has permanently banned a tech support business from offering its services and accepting inbound calls from consumers to remove viruses. FTC v. Repair All PC. The settlement boasts a $12.4 million judgment, all of which was suspended except $122,376.
A bill has been proposed in the Alabama House (HB 103) which would increase the penalty for violation of the state “do-not-call” law from the actual monetary loss or $5,000, whichever is greater, per violation.
A California court has refused to stay a case versus Charter Communications allowing limited discovery to proceed with regard to how Charter and its agents called the plaintiff. Brown v. Charter Communications, Inc.
Comment: Many TCPA cases have been stayed pending the D.C. Circuit Court of Appeal’s ruling on the FCC’s definition of “automatic telephone dialing system” (“ATDS”).
A class action approved by a California court in 2010 may be heard by the Supreme Court this summer on the issue of whether a class action which results in no payment to the plaintiffs is allowed under federal law. Frank v. Gaos. Although the defendant paid $8.5 million to settle the case, 25 percent of which went to plaintiffs’ attorneys fees, the remainder of the settlement fund was awarded to six organizations to promote privacy on the Internet and no payments went to the actual individual plaintiffs.
Comment: Once again, this settlement shows the true parties in interest in these suits, i.e. the named plaintiffs involved in the class have little interest in the case and the plaintiffs’ attorneys are the actual parties in interest.
A bill has been passed in both the Florida Senate and Florida House (SB 962) and is awaiting the governor’s signature. This will allow telecom providers to provide blocking services to consumers.
A bill has been proposed in the Florida Senate (SB 1276) which would require disclosures in political advertising including telephone calls paid for by independent expenditures of the name of the person paying for the advertisement and that it was independent from any candidate or committee.
A Florida court has dismissed a claim against Quicken Loans alleging it illegally called a consumer using a prerecorded voice message. Nece v. Quicken Loans, Inc. The judge also dismissed Nece’s allegation that Quicken violated her “do-not-call” request as the law provides a “reasonable time” to honor “do-not-call” requests. Nece argued that her “do-not-call” request should be effective immediately.
A federal court in Illinois has ruled that the Bais Yaakov of Spring Valley, et al v. FCC, case from the District of Columbia is binding in the Seventh Circuit, i.e. the FCC had no authority to require disclosures on solicited faxes.
Comment: A 2013 case, Holtzman v. Turza had language to the contrary, but most courts have found that language to be dicta, that is, not controlling and not addressing this issue directly. Many plaintiffs have tried to rely on Turza, but this case stands for the proposition that the TCPA cannot require disclosures on solicited faxes, and plaintiffs therefore cannot sue for technical violations or absence of TCPA disclosures on solicited faxes.
An Illinois court has certified a class of recipients of faxes regarding veterinary drugs. Fauley v. Drug Depot, Inc.
Comment: Defendants unsuccessfully moved to dismiss the case. Now that the class is certified based on 78,000 faxes, damages of $39 million could be available under the statute.
An Illinois court has allowed a purported class action to proceed against a defendant based on allegedly illegal fax advertisements. JT’s Frames, Inc. v. Casares. The defendant denied any involvement in the fax, but the court ruled the plaintiffs could take limited discovery to explore the truth of this claim.
A court has decertified a class brought against Yahoo, Inc. alleging illegal text messages. Johnson v. Yahoo, Inc. Yahoo provided an instant messaging service allowing users to send messages to other people. The plaintiff alleged that a welcome message sent to her by another unknown user violated the TCPA and moved for class certification. Yahoo argued that many users have provided “prior express consent” and this individualized question meant the action could not proceed as a class.
Comment: The court agreed and ruled the action could not proceed as a class. This is a very important victory with regard to TCPA classes and express consent.
A bill has been proposed in the Indiana House (HB 1405) which would specify that projecting false caller ID is a deceptive practice violating the Indiana telemarketing law.
A bill has been proposed in the Mississippi House (HB 1357) which would give individuals a private cause of action for violation of the state telephone solicitation law with actual damages or $5,000 per violation, whichever is greater. Previously, there was no private cause of action for violations of Mississippi’s state telemarketing law.
A bill has been proposed in the New Jersey General Assembly (AB 797) which would require transmission of caller ID information including name and telephone number to be answered during regular business hours.
A New York court has ruled a class representative, Dr. Eve Wexler, was inadequate because she was the wife of plaintiff’s class counsel. Wexler v. AT&T Corp. (E.D. New York). Although Mr. Wexler withdrew as counsel, the court ruled that he still had an interest in a fee award and her spousal interest in that award meant she could not act as class representative.
An Ohio court has refused to dismiss a fax case brought against a toner cartridge seller which used inmates to solicit businesses by telephone, then obtain their fax numbers. Whiteamire Clinic P.A. v. Cartridge World N. Am., LLC. The fax did not contain a properly worded opt-out notice and the court therefore denied a motion to dismiss.
Comment: While the court ruled the defendant could not rely on an established business relationship exemption, it said the issue of express consent was disputed and adopted other court’s rulings that fax disclosures are not required on solicited faxes. The judge still allowed the case to proceed on this disputed issue, however.
A bill has been proposed in the Tennessee House (HB 1879) which would require healthcare prescribers calling victims of accidents or disasters to maintain transcripts of calls for a period of two years following creation.
A bill has been proposed in the West Virginia House (HB 4150) which would prohibit transmission of false or misleading caller ID information.