February 2021 - Call Compliance News
A bill has been proposed in the Alabama House (HB 217) which would ban blocking transmission of caller ID information and provide a private cause of action for actual damages and attorneys’ fees for individuals who receive calls with blocked information.
An Arizona court has dismissed a Telephone Consumer Protection Act (“TCPA”) case brought against a cruise line when the plaintiff could not show the defendant directed any activities to Arizona such that the court would have jurisdiction over it. Winters v. Grant Caribbean Cruises, Inc. The court rejected plaintiff’s arguments that calls from unidentified callers caused the court to have jurisdiction.
A California court has dismissed a claim brought against a marijuana dispensary because the plaintiff did not allege the defendant used an automatic telephone dialing system (“ATDS”). Matthews v. Mid City Cannabis Club, Inc. The plaintiff did not “plead specific facts to demonstrate a plausible inference that defendant used an ATDS.” In general, allegations of ATDS use were not sufficient.
A federal court has found that Anton Ewing was not a vexatious litigant despite his “discourteous and unprofessional” conduct in other cases. Ewing v. BF Advance, LLC. The court did note Ewing complied with an earlier court order to disclose he was not an attorney despite having a law degree.
A bill has been proposed in the Illinois Senate (SB 3340) which would ban interference with consumers’ caller ID systems and ban the use of deceptive caller ID information. The bill would also ban “otherwise” misrepresenting the origin of a marketing call.
Another proposed bill (SB 1837) would ban all prerecorded marketing messages unless the caller had prior express written signed consent. Health-care related calls are the only exemption.
A third bill (HB 5395) which would ban prerecorded messages without prior express written consent has died in committee.
Comment: The bill would largely duplicate the TCPA.
A trial court has refused to find that faxes that were sent for continuing education were marketing and banned by the TCPA. Animal Hospital v. Elanco Animal Health. The court noted the faxes were not advertisements on their face and rejected plaintiff’s argument that the seminars were a pretext for later marketing.
A bill has been proposed in the Maryland House (HB 23) which would ban disclosure of motor vehicle records to third parties for use in telephone solicitations.
A bill has been proposed in the Mississippi House (HB 91) which would allow the Public Service Commission to retain all the funds charged for access to the state no-call list, rather than those fees being deposited in the state’s general revenue fund.
A bill has been proposed in the New York General Assembly (AB 2047) which would ban all prerecorded calls, including calls from nonprofits, without prior express consent.
An Oregon court has refused to overturn an almost $1 billion TCPA judgment against a multi-level marketing company. Wakefield v. ViSalus, Inc. The trial jury found ViSalus made 1,850,440 illegal prerecorded or automated telemarking calls to cell phones or landlines without prior written consent.
Comment: At $500 per violation, damages exceed $900 million before potential “trebling” based on knowing and willful violations.
A bill has been proposed in the Virginia Senate (SB 1339) which would regulate data brokers defined as entities that collect and sell public record information of Virginia consumers.
Washington is considering a bill (HB 1433) which would amend the state constitution to provide for an explicit right of privacy and enact extensive state provisions regarding use of consumers’ personal information, including requiring opt-in consent prior to use or disclosure of that information by businesses.
A Washington court has certified a class of consumers who received prerecorded calls on behalf of a pharmacy. Williams v. PillPack, LLC. The calls used an “Avatar or IVR” system to generate inbound leads to defendant’s call center. Plaintiff also alleged they did not honor his “do-not-call” request.
Comment: Defendant argued the Avatar system used a live voice and prerecorded snippets, and therefore was not subject to the TCPA prerecorded call ban. The court rejected this argument.