July 2021 - Call Compliance News
Federal Communications Commission
The Federal Communications Commission (“FCC”) robocall mitigation database went into effect on June 30, 2021. Service providers are required to register with the database prior to June 30, and traffic will be prohibited from unregistered providers after September 28, 2021.
Comment: Please contact me or Colin Gregory at email@example.com if you would like to discuss compliance with these restrictions.
A trial case subsequent to Facebook v. Duguid ruled that an “automatic telephone dialing system” (“ATDS”) must use a random or sequential number generator to actually create the contact list to call or text. Hufnus v. Do Not Pay, Inc.
Comment: Hufnus is, in our opinion, consistent with the Facebook ruling.
Governor DeSantis passed Florida Senate Bill 1120 and it went into effect on July 1, 2021. The bill changes Florida’s no-call law to allow calls using an “automated system” to dial or select telephone numbers only with prior express written consent. It made other minor changes as well, and provides a private cause of action for violations.
The Florida law specifically applies to both voice calls and text messages.
Comment: The term “automated system” is not defined and may or may not be broader than the definition of ATDS as discussed in Facebook. Compliance is a very serious matter and you should immediately contact your counsel if you are placing marketing sales calls into the state of Florida. The statute presumes that individuals that have telephone numbers with a Florida area code are located in Florida.
A South Carolina court has ruled that a TCPA defendant is protected from answering plaintiff’s discovery requests by the Fifth Amendment to the United States Constitution, which protects criminal defendants from incriminating themselves. This seldom cited section of the Communications Act, 47 U.S.C. § 501, provides a fine of not more than $10,000 or imprisonment for violations of the Act, which includes the TCPA. Even though plaintiff did not argue that section applies in the case, “the asserted unlikelihood of prosecution rests on nothing more than prosecutorial discretion.” The judge therefore quashed discovery sent to an individual defendant holding that other co-defendants appeared to hold the information as well “from whom it could just as easily be discovered.” Van Connor v. One Life Am., Inc.
Comment: This decision may be inevitable backlash to plaintiffs’ increasingly common tactic of suing individual owners of corporations in an effort to increase pressure on those TCPA defendants.