October 2020 - Call Compliance News
Supreme Court of the United States
Numerous entities have filed amicus, i.e. “friend of the court” briefs with the Supreme Court in the Telephone Consumer Protection Act (“TCPA”) case to be argued this winter. Facebook v. Duguid. State attorneys general claimed in their amicus brief that the TCPA was necessary due to “practical difficulties with interstate enforcement of state law.”
With the appointment of Justice Amy Coney Barrett, many TCPA commentators are noticing that she wrote an opinion in Gadelhak v. AT&T Services while she was a Seventh Circuit Court of Appeals judge, taking a narrow view of the definition of an automatic telephone dialing system (“ATDS”).
Eleventh Circuit Court of Appeals
The Eleventh Circuit Court of Appeals ruled that “incentive” awards to lead plaintiffs in class action suits are unlawful. Johnson v. NPAS Solutions, LLC. The Court vacated the lower court’s approval of a $1.432 million settlement which would pay the lead plaintiff $6,000 and other class members $7.97 each.
Federal Communications Commission
On October 1, 2020, the Federal Communications Commission (“FCC”) issued a notice of proposed rulemaking proposing exemptions to the TCPA’s ban on certain prerecorded calls to residential lines, as well as what changes need to be made to existing exemptions based on the TRACED Act. See https://docs.fcc.gov/public /attachments/FCC-20-140A1.pdf. The TRACED Act is designed to prohibit abusive robocalls.
The FCC has issued a guide entitled “Stop Unwanted Robocalls and Text Messages”. See https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts. It advises consumers “don’t answer calls from unknown numbers …” among other things.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has issued its national “do-not-call” registry data book for 2020. See https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2020. The list includes more than 241 million telephone numbers and generated more than three million complaints this year.
The FTC has issued a temporary restraining order halting the business of an Atlanta-based debt collector, Critical Resolution Mediation, LLC, alleging violations of the Firm Transmission Capacity Purchase Agreement (“FTCPA”).
A Florida television station is reporting that Republicans are sending more prerecorded calls than Democrats because their base is older and uses landlines. Younger generations are more likely to receive text messages.
A Louisiana court ruled that the TCPA’s cell phone call ban is unenforceable prior to July 6, 2020. Creasy v. Charter Communications. The court based this decision on the Supreme Court’s recent decision in AAPC v. Barr, in which the Supreme Court severed the debt collection exemption from the TCPA’s cell phone call ban. It opined that if the cell phone call ban was unconstitutional prior to severing the exemption, it should not be enforceable at all.
Comment: If you are currently a defendant in a TCPA case involving calls or texts prior to July 6, 2020, you should bring this argument to your court immediately.
Arrest warrants were issued for two individuals charged with sending thousands of prerecorded calls that falsely warned people that information obtained from their mail-in ballots could lead to their arrest or forced vaccinations. Jacob Wohl and Jack Burkman were charged with bribery and voter intimidation after being indicted by a grand jury in Cuyahoga County.