August 2020 - Call Compliance News
Telephone Consumer Protection Act
The Supreme Court review of the FCC definition of “automatic telephone dialing system” (“ATDS”) will be heard at the end of 2020, with a decision expected in early 2021. Facebook, Inc. v. Duguid.
Plaintiffs continue to file class actions at a furious rate, perhaps anticipating an end to the era of alleging anything that dials is an ATDS. The argument goes that anything, e.g. an iPhone, my laptop, my oak desk (!), can be modified with enough hardware and software to give it the capacity to dial without human intervention.
Comment: If you are sued pending the Supreme Court decision, you should move to “stay” or delay your case until the Supreme Court rules.
Federal Communications Commission
In the meantime, the FCC is currently considering more than 30 petitions for clarification regarding various aspects of the TCPA and the agency’s regulations. Recently, the National Consumer Law Center requested to reverse the FCC’s order on peer-to-peer texting.
Comment: Do not expect plaintiffs and their counsel to give up these fights easily given the amount of money they have won and can win in the future in these cases.
The FCC has also clarified that the COVID-19 pandemic qualifies as an “emergency” under the TCPA’s emergency purposes exception. Health care providers can communicate with people who have tested positive and do not need prior express consent because of the “emergency purposes” exemption.
Federal Trade Commission
The FTC has announced fees for access to the national do not call Registry will increase effective October 1, 2020, to $66 for yearly access to Registry phone numbers in a single area code, which is an increase of $1 from FY 2020. The maximum charge to any single entity for accessing all area codes nationwide will now be $18,044 (up from $17,765 in FY 2020).
Comment: The fees increase with the Consumer Price Index.
The FTC also announced it mailed $700,000 in refunds to businesses defrauded in a telemarketing scheme involving “google delisting”. Almost 4,500 businesses will receive refunds. See https://www.ftc.gov/news-events/press-releases/2020/08/ftc-sends-refund-checks-totaling-more-700000-small-business.
Sixth Circuit Court of Appeals
The Sixth Circuit Court of Appeals recently ruled that a device that dials from a stored list of numbers but cannot randomly or sequentially generate those numbers qualifies as an ATDS. Allan v. Pennsylvania Higher Education Assistance Agency. This ruling adds to the growing split on the definition of ATDS with circuit courts.
Comment: The Supreme Court granted certiorari to review the definition of ATDS. Facebook, Inc. v. Duguid.
An Illinois court dismissed a plaintiff’s claim that defendant, debt collector General Revenue Corporation, used an ATDS to call her number. Mosley v. Gen. Revenue Corp. It found that plaintiff’s claim that defendant used an ATDS was implausible because “the business of the defendant is such that it would not need a machine with random or sequential number generation capacities.”
Comment: This is an important ruling for debt collectors, as their sole purpose is to contact specific debtors, not to generate random or sequential numbers.
An Oregon court found that more than $925 million in damages in a TCPA case is not unconstitutionally excessive. Wakefield v. ViSalus, Inc. The court reasoned that due process does not limit the aggregate statutory damages that can be awarded in a TCPA class action.
Criminal charges have been filed against a former Uber executive alleging he covered up a data breach violating California privacy law. See https://www.justice.gov/usao-ndca/press-release/file/1306781/download.
Comment: At this point, a data breach likely requires a company provide notice to affected consumers in all 50 states. These notifications are fairly commonplace, so covering up a breach seems stupid. In this situation, perhaps criminally stupid. Please contact us if you would like information regarding data breach rules, or state and federal privacy laws.