January 2022 - Call Compliance News
Federal Trade Commission
The Federal Trade Commission (“FTC”) has increased the maximum penalty allowed for violations of the Telemarketing Sales Rule (“TSR”) from $43,792 to $46,517. See https://www.federalregister.gov
Comment: The FTC will often argue that a single call could be a violation, thus maximum civil penalties under the TSR can be catastrophic for almost any size telephone campaign. However, these maximum penalties are rarely, if ever, imposed absent egregious fraud and the maximum” penalty often demanded by the FTC is merely a negotiating tool. Still, compliance with the TSR is of tantamount importance.
A Minnesota court has issued summary judgment in favor of the Defendant in a Telephone Consumer Protection Act (“TCPA”) case, holding that the entity Plaintiff sued was not responsible for the calls he received. Zean v. SelectQuote Insurance Services. SelectQuote claimed it never placed or caused a call to be placed to Plaintiff, left a message on his voicemail, or otherwise contacted him in any way. Zean could not link SelectQuote to the calls, which were answered by Efinancial when he returned them. The court concluded “Zean’s summary judgment argument is based on his vehement belief that SelectQuote is responsible for the telemarketing calls he received. However passionate his belief, it is fully contradicted by the record.”
Comment: SelectQuote should be applauded for defending this case, as it surely cost more to defend that it would have been to settle with Zean for some nuisance value.
A bill been proposed in the Oklahoma House (HB 3168), which would create a new section known as the “Telephone Solicitation Act of 2022.” The bill would bar the use of an automated system for the selection or dialing of telephone numbers. The bill would also bar playing any prerecorded messages without prior express consent. The bill also proposes a curfew of 8 a.m. through 8 p.m. and would prohibit more than three telephone calls from any number to any person within a 24-hour period regardless of subject.
Comment: This bill has some provisions of the Florida “mini” TCPA, but also adds additional restrictions.
A Tennessee court has denied cross-motions for summary judgment in a TCPA case involving calls from a debt collector. Stewart v. Health Care Revenue Recovery Group, LLC. The case involved allegations of violation of the Fair Debt Collection Practices Act (“FDCPA”), as well as the TCPA. Plaintiff alleged 62 violations of the TCPA for prerecorded voicemail messages. The Defendant argued it did not use an automatic telephone dialing system (“ATDS”), and the court properly ruled that this argument was irrelevant as the TCPA bans the use of prerecorded voice or ATDS calls absent prior express consent.
Comment: This is not a total loss for the Defendant, which the court allowed to argue that the calls were made with Plaintiff’s prior express consent.
A bill has been proposed in the Utah House (HB 217), which would ban any seller with a felony conviction from registering as a telephone solicitor in Utah. The bill would also ban the use of any fictitious personal names in telephone solicitations.
A bill has been proposed in the Washington House (HB 1650), which would ban the use of automated dialing announcing devices (“ADAD”) absent prior express consent. This bill would apply to live or prerecorded messages if the system “automatically selects or dials telephone numbers.”
A Washington court has ruled against a well-known private plaintiff who alleged calls he requested violated the TCPA. Johansen v. Efinancial, LLC. After receiving an online inquiry, Efinancial contacted Johansen in a 26-minute telephone call during which he answered all questions and provided specific and detailed health information. Only after providing this information did he object to the call claiming it was on the “do-not-call” list. The judge ruled the online inquiry was a “signed, written agreement” and that Efinancial had a reasonable basis to call him. Plaintiff claimed he did not submit the internet request. The judge rejected this argument. Even if he did not submit the request, the judge further ruled that the “safe harbor” provisions of the TCPA applied. The judge dismissed the case with prejudice.
Comment: This is a very important case regarding “fake” leads allegedly used by many TCPA plaintiffs. Even if a lead is fake, the court ruled that because the Plaintiff participated in the follow-up call, he gave the caller a reasonable basis to assume the consent had been valid and the call was therefore subject to the TCPA’s “safe harbor.”