January 2021 - Call Compliance News
Federal Communications Commission
The Federal Communications Commission (“FCC”) has requested public comment regarding how it should regulate unlawful robocalls to hospitals. Comments are due by February 1, 2021. See https://www.fcc.gov/document/fcc-asks-how-incent-use-hospital-anti-robocall-best-practices.
Federal Trade Commission
The Federal Trade Commission (“FTC”) has published new civil penalty amounts for violations of its laws including actions for unfair deceptive trade practices often used in telemarketing cases. The maximum penalty per violation for an unfair deceptive act is now $43,280. See https://www.federalregister.gov/documents/2020/01/14/2020-00314/adjustments-to-civil-penalty-amounts.
Comment: If the FTC considers each call to be a violation, these civil penalties could be ruinous. Thus it is very important to review compliance with the Telemarketing Sales Rule even though it is unlikely to be used in a civil class action like the Telephone Consumer Protection Act (“TCPA”) so commonly is.
A Florida court has enforced an arbitration agreement against a plaintiff who defaulted on an auto loan, then alleged calls to collect the auto loan violated the Fair Debt Collection Practices Act (“FDCPA”) and the TCPA. Grand v. Rapid Auto Loans, Inc.
Comment: It is very important that your agreements with consumers contain enforceable arbitration clauses to prevent nuisance and worse, TCPA allegations. Please contact me if you would like us to review your contracts with regard to this issue.
A court has denied a pro se TCPA plaintiff’s claim to be able to file his suit under the TCPA and FDCPA without the filing fee. Strange v. Juiceman.
Another frequent TCPA plaintiff Michael Worsham has lost a claim against Discount Power, Inc. Worsham v. Discount Power, Inc. The defendant argued his 17-count complaint based on seven calls failed to state a claim in violation of the TCPA or the Maryland Telephone Consumer Protection Act because he asserted “absolutely no facts to support [the] allegation that [defendant] used an [automatic telephone dialing system].”
Comment: Worsham is a disbarred attorney who now files pro se cases on his own behalf.
A Las Vegas marijuana dispensary is now a defendant in a TCPA class action after it texted consumers who had provided their telephone number to the business when they visited to purchase marijuana. Stanley, et al. v. Terratech.
Comment: If, as alleged, the plaintiffs provided their number as a condition to enter the store, it is not prior express consent as the number was provided not to facilitate communication but for another limited purpose. If you intend to rely on this form of prior express consent, you should ensure that you do not create limitation that would allow a plaintiff to claim a provision to the telephone number is not prior express consent.
The New Hampshire House is considering a bill (HB 510) which would modify the state’s automatic telephone dialing device statute to allow prerecorded calls only for emergency purposes or with prior express consent.
A bill has been proposed in the New York Senate (SB 1349) which would require businesses make available to consumers free of charge access to all customers’ personal information retained by the business if the business provides that personal information to any third party. The restriction is not limited to businesses that sell consumer information, i.e. any form of sharing would trigger the notice requirement.
A judge has allowed a fraud counter-claim to proceed against Craig Cunningham, a frequent TCPA pro se plaintiff. Cunningham v. United States Auto Protection. The defendant alleged plaintiff made “material and continuous false representations … that he knew were false and that he intended [defendant] to rely upon.”
Comment: Plaintiffs often will “play along” with calls providing false information to generate later calls. This case could be an important defense against such cases.