November 2020 - Call Compliance News
Federal Communications Commission
Federal Communications Commission (“FCC”) Commissioner Geoffrey Starks has requested FCC Chairman Ajit Pai to suspend consideration of partisan or controversial items pending the presidential transition.
The FCC has reached a $200 million settlement with T-Mobile resolving claims of waste, fraud, and abuse in Sprint’s “Capital Lifeline” program for low-income consumers. Sprint received a $9.25 monthly subsidy for Lifeline subscribers on the condition that the discount be passed to subscribers. The FCC alleged that Sprint retained the subsidy despite knowing consumers were no longer using their phones.
On November 30, 2020, the FCC signed an order designed to protect consumers from “one-ring” telephone calls. See https://docs.fcc.gov/public/attachments/FCC-20-171A1.pdf. These calls are intended to prompt the called party to return the call, subjecting them to toll charges. The caller ID presented is domestic, but the return call is actually international causing the charge.
The order allows providers to block these calls and to educate the public in conjunction with the Federal Trade Commission regarding these calls and to modify the regulations implementing the Telemarketing Sales Rule accordingly.
A lawsuit has been filed in California alleging Sport Clips barber shops sent texts to consumers announcing the location of new stores. Gonzalez v. Sport Clips, Inc.
Comment: Even if a consumer provided his or her telephone number to Sports Clips, it is unlikely that it was provided for the purpose of a store announcement. For example, if a consumer provided her telephone number to be texted when the stylist is ready, that might be a limitation such that a store announcement would not be permitted. It is important that you review the provenance of telephone numbers to which messages will be sent to ensure that a given message can be sent to it based on the prior express consent obtained.
Another court has denied an “incentive award” to a named plaintiff in a Telephone Consumer Protection Act (“TCPA”) class action settlement based on the earlier higher appellate court ruling in Johnson v. NPS Sols., LLC. Hawkins v. JP Morgan Chase.
Comment: It will be hard for plaintiffs’ counsel to justify their claims that TCPA plaintiffs are the actual parties of interest when those plaintiffs can no longer be paid an incentive award. Of course, given that the incentive award was a fraction of a percent of the attorneys’ fees claimed in these cases, this argument never was legitimate.
A Louisiana court has set aside a default judgment entered against a debt collector. Young v. Tele Recovery Corp. The judge ruled the lawyer who operated the company was not properly served, but allowed plaintiff to revise the complaint and directed the defendant to make himself available for service of the amended complaint.
Comment: Ignoring a lawsuit you receive is never a good idea, even if there are some arguments that service was improper.
We recently represented a third party which received a subpoena in a purported TCPA class action. We objected to the subpoena as it was overbroad and inappropriate. The magistrate judge, followed by the district judge agreed to quash the subpoena. Chinitz v. Realogy.
Comment: If you receive a subpoena and are not a party to the action, you are entitled to more protection than discovery between parties. You should carefully review your options before responding, especially if the subpoena subjects you to significant expense or effort.