September 2022 - Call Compliance News

Federal Communications Commission
The Federal Communications Commission (“FCC”) has issued a notice of proposed rulemaking (“NPRM”) designed to prevent illegal texts. The rule would require mobile providers to block illegal texts at the network level from invalid, unallocated, or unused numbers.
 
Comment: The rule is specifically aimed at “quit spoofing” the origin of telephone number. These calls are illegal under the Truth In Caller ID Act of 2009 and its updated rules, the Truth In Caller ID Act of 2019. The FCC needs comment on this proposal as well as other ways it could address illegal texts. Comments must be filed electronically within 30 days of the application in the Federal Register, which should happen in the coming weeks.
 
Federal Trade Commission
The Federal Trade Commission (“FTC”) has entered a permanent injunction against an individual, barring him from selling any healthcare related product in the future. FTC v. Benefytt Techs., Inc., et al. The complaint was filed in August and alleged the Defendants, including individual Gavin D. Southwell, a former officer of Benefytt, deceived consumers seeking health insurance into buying products that did not provide the promised coverage. The settlement did not involve any financial penalty and the case continues against the other Defendants.
 
The FTC conducted a public forum regarding data security practices and commercial surveillance in September.
 
Comment: The FTC has used its general power to prevent “unfair” trade practices to regulate data security, but the United States does not have a uniform data security law similar to the European Union.
 
Alabama
An Alabama court has allowed a Plaintiff to amend a complaint and add a new Defendant who allegedly (1) faked leads representing an outbound call to the Plaintiff was an inbound call and (2) doctored a recording between the lead generator and the Plaintiff. Johnson v. Charter Communications.
 
Comment: There is nothing inherently illegal with purchasing leads, but a business needs to ensure its partners are compliant with the law or it can be held “vicariously” liable for its partners actions. Good contract language is a start, but the lead purchaser also needs to monitor the quality of the purchased leads to be sure it is receiving what it paid for.
 
California
Nissan has settled a class action brought by Plaintiffs who were called by Defendant on their cellphones even though they had no business relationship with Nissan. Terteryan v. Nissan Motor Acceptance Corp. The settlement included a payment of $2.2 million and allowed individuals who received calls to make a claim in excess of $900.
 
Connecticut
A Connecticut court has certified a case against a pest control company which used “ringless” voicemail to contact potential customers. Lenorowitz v. Mosquito Squad Franchising, LLC, et al. The court determined a class existed for more than 9,100 plaintiffs who received a single “ringless” voicemail message.
 
Comment: Any argument that “ringless” voicemail is not subject to the TCPA has been rejected repeatedly by courts.
 
Florida
A Florida court has refused to dismiss a TCPA fax class action brought by a pharmacy against a prescription drug company. SASB Corp. v. Medical Security Card Co., LLC. The Defendant claimed the fax was “informational” and only offered a free discount drug program, but the court disagreed, holding “the inquiry is not whether the fax advertises on its face, but whether it was sent for the purpose of promoting sales.”
 
Maryland
A court has denied a patient’s claim against her former doctor that his texts and calls violated the TCPA because he did not have prior express written signed consent to call or text. The court upheld the healthcare exemption because the messages were related to the downsizing of his practice and her access to his services. Derossett v. Patrowicz Holdings, LLC.
 
Michigan
The Michigan legislature is considering a “mini-TCPA” bill (HB 6307). The bill would adopt the definition of “automatic dialing announcing device” (“ADAD”) to be any equipment which automatically selects or dials telephone numbers. The bill defines “telephone solicitation” to include offers to sell goods or services, attempt to obtain a charitable donation, accept or participate in any employment, or on behalf of a political organization. Calls made with express consent or to an existing customer are exempt. The bill would ban any of these “telephone solicitations” to residential telephone subscribers whose numbers are on the national “do-not-call” list.
 
Comment: This bill is very restrictive in the sense that it applies the national “do-not-call” list to many types of calls previously not subject to the list, e.g., charitable donations and political calls.
 
North Carolina
Omar Khouri, a common TCPA plaintiff, has announced he has used money from 20 to 30 TCPA settlements to open a bar called “The Wrong Number.”
 
West Virginia
A West Virginia court has refused to order arbitration in a TCPA “do-not-call” list class action. Vance v. DirecTV, LLC. The court ruled DirecTV did not move to compel arbitration until more than five months had past since the complaint was filed and had vigorously litigated the case prior to moving for arbitration. “These actions constitute waiver.”
 
Comment: Arbitration clauses can be powerful defenses if properly disclosed, agreed to by the parties, and invoked in a timely manner. Please contact me if you would like to discuss adding arbitration language to your terms and conditions.