October 2011 - Call Compliance News

• The FCC announced a $4,500 forfeiture order against Western Aviation, Inc. alleging violation of the TCPA prohibition of unsolicited fax advertisements.
• The FTC has refunded money to more than 180 small businesses which were allegedly defrauded by telemarketing companies selling business directory listings.
• A New York court has ruled that a consumer who unintentionally received calls placed to another debtor by accident is not entitled to sue under the TCPA for those calls.

Federal Communications Commission
The FCC announced a $4,500 forfeiture order against Western Aviation, Inc. alleging violation of the TCPA prohibition of unsolicited fax advertisements.

Federal Trade Commission
The FTC has issued proposed changes to its mail or telephone order merchandise rule, 16 CFR § 435.1 et seq. 76 Fed. Reg. 60715. The proposed amendments clarify that the rule covers all internet merchandise sales regardless of how buyers access the internet, require sellers to provide refunds and refund notices by means at least as fast and reliable as first class mail, and require cash or other similar form of refunds when buyers use any payment method other than credit.  Comments are due on or before December 14, 2011.

A federal court has filed suit against a debt collection company and its principals alleging violation of the Fair Debt Collection Practices Act for making false representations in attempts to collect a debt.  Federal Trade Commission v. Rincon Management Services, LLC et al.

The FTC has refunded money to more than 180 small businesses which were allegedly defrauded by telemarketing companies selling business directory listings.  Federal Trade Commission v. Integration Media, Inc., et al.

U.S. Government
President Obama has proposed exempting government debt collection efforts from the TCPA’s restriction on predictive dialed calls to cell phones.

Arizona 
Arizona has proposed a regulation revising its fees for registration of telemarketing sellers.  Comments are due by January 4, 2012.

California
A California resident has filed a class action lawsuit against Nascar (Jaber v. Nascar) alleging that she received an unsolicited text message advertising a cell phone application.  She also alleging that the confirmation of her opt-out received by text was a second TCPA violation.  It may be that Jaber’s number was mistakenly included in Nascar’s database.  This case shows the potential hazard of inaccurate databases.

Connecticut
A federal appellate court has dismissed a class action brought alleging faxes illegal under the TCPA.  The Second Circuit ruled that the state statute of limitations of two years applied to the action rather than the four year statute of limitations provided by federal law.  Giovanniello v. ALM Media, LLC.

Comment:  This case may be very important as state law applies in state court and the TCPA provides that TCPA claims are to be brought in state court.

Florida
A Florida court has ruled that the FCC’s standard for “express consent” concerning calls placed to cell phones applied to a call placed by a debt collector.  Moise v. Credit Control Services.  The court ruled, however, that the number would have to be provided to the collector, itself, rather than to the original creditor.  The court ruled that the Hobbs Act prohibited the court from reviewing the validity of the FCC order.

A Florida court has ruled that individual defendants who were officers of corporations who sent faxes could be liable under the TCPA for damages. Zelma v. Williams.  The court ruled that the individuals were high level officers in their respective companies and likely personally participated in the decision to send unsolicited advertisement faxes.

Comment:  Individual officers must review compliance and can not rely solely on the corporate structure to protect them from potential damages under this or other statutes.

Illinois
An Illinois court has granted class certification in a case alleging illegal unsolicited faxes offering hearing aid repair services.  Bridgeview Health Care Center v. Clark.

Indiana
Indiana Attorney General, Greg Zoeller, recently mailed a letter to political parties in the state warning that he intends to enforce the state’s prerecorded telephone call law in the coming campaign.

Kansas
The Kansas Supreme Court has approved certification of a class of persons who allegedly received illegal unsolicited faxes.  Critchfield Physical Therapy v. Taranto Group, Inc.  The court ruled that the threat of catastrophic damages under the TCPA should not protect parties who violate the law on a large scale and was not a relevant factor in determining whether a plaintiff class could be certified.

Maryland
A Maryland court has upheld the disclosure requirements found in the TCPA (legal name of caller and telephone number).  State of Maryland v. Universal Elections, Inc.  The company had sent anonymous “robocalls” on Election Day, November 2, 2010, and stated “Hello, I’m calling to let everyone know that Governor O’Malley and President Obama have been successful, our goals have been met….”  The defendant claimed that the disclosure violated the First Amendment, but the court rejected that argument.

New York
A New York court has ruled that a consumer who unintentionally received calls placed to another debtor by accident is not entitled to sue under the TCPA for those calls.  Franasiak v. Palisades Collection, LLC.

Comment: Courts have ruled on both sides regarding whether an unintentional recipient of a call can sue under the TCPA.  Given these inconsistent rulings, any calling company must make every effort to ensure that its calling database is accurate to avoid such liability.

Ohio
An Ohio court has dismissed a TCPA plaintiff’s claim that he could sue based on violation of the FCC’s “do-not-call” regulations.  Charvat v. DFS Services, Inc.  The court ruled that the plaintiff could not sue for defendant’s failure to honor a “do-not-call” request, but rather only for the calls themselves.

The Sixth Circuit Court of Appeals has ruled that federal courts do have jurisdiction to hear TCPA claims.  Charvat v. NMP, LLC.  Because there is a split among appellate courts regarding whether federal courts can hear TCPA cases, the Supreme Court has decided to hear the issue.

Pennsylvania
Pennsylvania has proposed rules and regulations for marketing sales practices for retail residential energy.