August 2018 - Call Compliance News
Federal Trade Commission
The Federal Trade Commission (“FTC”) has obtained an injunction from a federal court stopping a telemarketing company which allegedly charged up front fees from consumers to secure them government grants of up to $10,000. FTC v. Hite Media Group, LLC, et al. The defendants were based in Phoenix, Arizona.
Comment: Usually, the FTC only seeks a temporary restraining order against a defendant accused of violating the Telemarketing Sales Rule (“TSR”) if allegations of financial fraud are involved.
An Alabama court has ruled that a debtor could not unilaterally revoke consent given a debt collector in a contract, in this case for satellite television. Few v. Receivables Performance Management.
A California court has enforced an agreement to arbitrate in a purported Telephone Consumer Protection Act (“TCPA”) class action against a time share company. Augustine v. TLC Resorts Vacation Club, LLC. The court ruled plaintiff signed a membership agreement which contained an arbitration clause and that arbitration clause was not unconscionable.
A Connecticut court has ruled that a consumer could not unilaterally revoke express consent she gave to a creditor to call her regarding a debt. Harris v. Navient Sols., LLC. The court ruled that her consent was bargained for in her debt contract.
A Florida judge has ruled that a system used to send texts was not an automatic telephone dialing system (“ATDS”) because it required human intervention, but that human intervention did not necessarily need to occur at the exact moment a text is sent. Ramos v. Hopele of Fort Lauderdale. The court favorably cited an Arizona case where an employee of the texter drafted a message and selected a time and date for it to be delivered in the future, and still concluded the system was not an ATDS. The court therefore granted the defendant summary judgment and denied as moot a motion to certify class.
Comment: This is an important case for texts scheduled to be sent in the future because it notes that clicking “SEND” for future texts is “human intervention” such that the system is not an ATDS. Other facts regarding human intervention are important as well.
Illinois has repealed its “do-not-call” list statute. Although the state had already adopted the federal list, its state “do-not-call” list statute had different definitions of established business relationship for purposes of exemptions. P.A. 100-0621.
Comment: Illinois will now use the federal definitions.
A bill has been proposed in the New Jersey General Assembly (AB 4319) which would permit for-profit debt adjustment companies to operate in the state so long as they complied with the TSR and do not hold consumer funds.
Comment: The TSR has specific rules for services represented to provide consumers debt relief including a ban on accepting payment from a consumer until the debt has actually been renegotiated, settled, reduced, or otherwise altered.
A New Jersey court has ruled that a flu shot reminder from a pharmacy fell within the healthcare exemption of the TCPA prior express written signed consent rule. Bailey v. CVS Pharmacy, Inc. The court noted that the plaintiff provided her telephone number to CVS and therefore expressly consented to receive healthcare calls.
An Ohio court has dismissed a TCPA claim brought by a plaintiff who knowingly supplied a false address and false account number during a call from a utility, likely in an effort to create a TCPA claim. Johansen v. National Gas & Electric, LLC. After starting an enrollment process and providing false information, Johansen called back the utility but his call was not answered. The utility then attempted to call him back. He did not answer although he sued alleging these calls violated the national “do-not-call” list.
Comment: Johansen is a well-known plaintiff who will likely not hear the last of this “deceptive conduct”.
A Pennsylvania court has denied certification of a TCPA fax case because the defendant claimed he received every fax number directly from that person during a phone or in-person conversation. Because of these facts, the court ruled that it would have to have an individualized “mini trial” for each person to determine consent and therefore denied the class certification. KHS Corp. v. Singer Fin. Corp.