May 2021 - Call Compliance News
Fifth Circuit Court of Appeals
The Fifth Circuit has ruled against a nutrition company in a Telephone Consumer Protection Act (“TCPA”) class action suit. Cranor v. 5 Star Nutrition. Cranor alleged a single text message sent to his cell phone constituted common law public nuisance. The Fifth Circuit agreed and reversed the prior dismissal based on the idea that the plaintiff had established injury.
Comment: The TCPA is only actionable as a private action if there has been more than one call or text sent to a plaintiff. In this case, the judge focused on types of harms protected at common law, not the precise point at which those harms become actionable.
Federal Communications Commission
The Federal Communications Commission (“FCC”) will be considering an order at its June 21, 2021 meeting which would “create an online portal located on the FCC website where private entities can submit information about suspected robocall and spoofing violations directly to the Enforcement Bureau.” This effort is part of further implementing the TRACED Act.
United States Senate
A bill has been introduced in the United States Senate which would allow for prison time and increased fines for violations of the TCPA. Deter Obnoxious, Nefarious, and Outrageous Telephone (“DO NOT”) Call Act. A similar bill was introduced in the House (HB 3810) in 2019 but did not pass.
The Florida legislature has passed a restrictive telemarketing law (SB 1120) and sent it to the governor for signature. It would amend Florida’s telephone solicitation law to prohibit “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to number called without the prior express written consent of the called party.” See https://www.flsenate.gov/Session/Bill /2021/1120/BillText/er/HTML.
A “telephonic sales call” is defined as:
a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
Fla. Stat. Ann. § 501.059(1)(g).
The term “automated system” is not defined, but it is not the same as an “automatic telephone dialing system” (“ATDS”) as defined by the TCPA and interpreted by the Supreme Court’s decision in Facebook, Inc. v. Duguid.
Comment: Because the statute also provides for a private cause of action, the section poses a significant risk for anyone calling Florida area codes. We will track this law and when it might become effective.
A Pennsylvania court has dismissed a TCPA case wherein plaintiff alleged that the dialing system “calls phone numbers from a stored list using a random or sequential number generator to select those phone numbers.” Camunas v. Nat’l Republican Senatorial Comm. The court did not entertain the idea whether or not this made the dialing system an ATDS or not, but rather dismissed the case on lack of information in the complaint.
Comment: This could be a loophole for plaintiffs in TCPA cases alleging that the dialing system used a random or sequential number generator to randomly select numbers off of a stored list to call. We will keep a close watch on this argument.