October 2019 - Call Compliance News
Sixth Circuit Court of Appeals
The Sixth Circuit Court of Appeals has affirmed a lower court which ruled that an automatic telephone dialing system (“ATDS”) requires random or sequential number generation. Gary v. Trueblue, Inc. The decision is unpublished, however, and affirmed the lower court with no additional analysis.
Comment: The fact that it is unpublished and that it has no additional analysis means that the case may not be binding on other courts in the Sixth Circuit, that is, it does not have precedential effect on those courts. More courts, however, are adopting the “statutory” definition of ATDS which uses the words random or sequential. Because the legislature has intended to use each word with meaning, courts taking this approach do not read those words out of existence as the Federal Communication Commission (“FCC”) did in its 2003 ruling.
Governor Gavin Newsom signed the California Data Broker Registration law on October 11. It goes into effect January 1, 2020 and will require data brokers to register with the California Attorney General and pay a registration fee. “Data broker” is defined as a business that knowingly collects and sells to third parties the personal information of consumers with whom the business does not have a direct relationship.
Comment: California is the first state to pass this sort of registration, but I predict it will not be the last.
A court has refused to certify a class of “wrong number” call recipients even though the vendor the caller used to disposition codes memorialized the result of each call. Sliwa v. Bright House Networks, LLC. The court ruled that even with disposition codes, an individualized inquiry would be necessary to determine what happened on each call. A customer might tell the caller that it was a “wrong number” just to avoid further calls, when actually it was the correct number.
Comment: If a court has to engage in “individualized questioning” to determine if a person is in the class, there can be no class.