In a petition filed with the FCC, attorney Todd C. Bank argues that his residentially classified telephone line, which he uses for business purposes, should be protected under TCPA regulations. This would result in call restrictions applying to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber. This could create substantial repercussions for telemarketers, who would have to additionally screen any potential calls for residential classification by the telephone provider.
Two recient cases indicate that not only are private plaintiffs suing at a higher rate, but also state’s Attorney General offices are involved as well. With such increased involvement, this is another reason companies and marketers should be scrubbing federal and state do-not-call lists.
Pennsylvania Attorney General Files Suit Alleging State Telemarketing Law Violations
The Pennsylvania Attorney General office announced that it filed a civil lawsuit against a home chimney cleaning company and its owner. The AG alleges that representatives of the company and its affiliates made hundreds of thousands of unsolicited phone calls to people registered on Pennsylvania’s Do Not Call list. The lawsuit names Interstate Ventilation Inc. and its owner, Adam Joyce, claiming that they violated the PA Unfair Trade Practices and Consumer Protection Law and the Telemarketer Registration Act. Additionally, the complaint alleges that the defendants placed numerous calls to individuals after being told to be placed on the defendants’ internal do-not-call lists, among other similarly related allegations.
The lawsuit seeks to issue an injunction against Joyce and the companies from engaging in telemarketing in PA. It seeks a $1,000 penalty for every violation of the Unfair Trade Practices and Consumer Protection Law, as well as a $3,000 penalty for every violation involving a consumer 60 years old or older.
Missouri Attorney General Case Survives Motion to Dismiss in TCPA Case
The Missouri Attorney General’s office filed suit against Charter Communications, Inc. in federal court in October 2015 alleging violations of federal and state telemarketing and “do-not-call” laws. Earlier this year, Charter filed a motion to dismiss the three counts from the complaint claiming that the Missouri AG failed to cite any specific examples of individuals who were on the federal or state do-not-call lists, and failed to allege that calls were made to cellular telephones in violation of the TCPA.
The Court sided with the Missouri AG on the first and third causes of action stating that “identification of each specific telephone number called is not required at this stage of the litigation.” The Court sided with Charter on the second TCPA claim in the complaint finding that the AG was required to plead that calls were made to cell phones in order to state that calls made with an ATDS violated the TCPA. This count was dismissed without prejudice—giving the AG an easy opportunity to amend their pleadings.
Portfolio Recovery Associates LLC (“Portfolio”) recently settled a multi-district class action that included roughly 7.4 million class members. Plaintiffs allege that Portfolio violated the TCPA by placing calls to cell phones using an ATDS without their consent. The settlement has not yet been approved by the court but it requires Portfolio to pay out $18 million and have an injunction ordered which will prohibit Portfolio from using its Avaya Proactive Contact Dialer to place calls to any person’s cellular telephone numbers without prior express consent.
This costly settlement could have been avoided entirely if compliance measures were properly in place. To find out more, give us a call at 866-362-5478.
A new ruling in New York specifies that litigators can effectively go after well-intentioned individuals for TCPA violations, not just businesses. The ruling also extends prosecution beyond those who directly committed the violation. Anyone associated with the action, such as a supervisor or director could be held responsible.
The Southern District of New York, in Bais Yaakov of Spring Valley v. Graduation Source, LLC recently held that the TCPA does not only apply to business but also to its corporate officers and agents. This court held that individuals may be personally liable for TCPA violations “when they directly participated in, or personally authorized, the violative conduct.” The Court rejected the argument that personal liability is only attached to the people who actually made or sent the unlawful communications.
Ensuring that you are compliant with all Federal and State Do Not Call (DNC) regulations has never been more important. Make sure you're protected! Contact us to learn how to mitigate your risk.
A plaintiff filed a class action lawsuit in federal court in Florida on December 31, 2014 alleging that Bank of America, NB Holdings Corporation, and FIA Card Services, N.A. violated the TCPA by placing calls and sending text messages through the use of an ATDS or an artificial or prerecorded voice to cellular telephones belonging to consumers who were not the intended recipients of the calls and texts, and who did not provide prior express consent to receive such calls and text messages.
In an effort to avoid the time and expense of litigation, and through the help of mediation, the parties filed a Settlement Agreement on April 21, 2016. The defendants agreed to put $1,000,000 into a settlement fund, which is non-reversionary. Class Members will receive a check for their equal share of the settlement fund in amounts ranging from $15 to $25 per class member.
Additionally, the Settlement Agreement includes important prospective business practice changes in which the defendants agree to implement enhancements to their servicing systems. The changes are focused on preventing the calling of a cellular phone unless a business record is systemically coded to reflect the called party’s prior express consent.
The Federal Trade Commission released their 2015 Annual Highlights today featuring some of the their best efforts to benefit consumers and promote competition over the past year. The FTC said their focus on protecting consumers in various industries ranged “from health care to the digital economy to basic consumer products and services” while also attempting to expand their knowledge and understanding of “emerging technologies and their impact on consumers.” These highlights address the FTC’s legal actions they took in 2015, including areas such as health care, technology, and other consumer products and services. For example, in the healthcare sector, the FTC sought to ensure truthful advertising of weight-loss, cancer detection, and cognitive development claims, along with continuing its efforts to maintain competition in important healthcare markets, including blocking three proposed hospital mergers because of “anticompetitive consolidation.”
In the technology sector, the FTC worked to protect consumers from fraud and deception in a rapidly changing marketplace, such as stopping a deceptive crowdfunding campaign, stopping the distribution of virtual currency-mining software, and stopping deceptive endorsements in online reviews and videos. Additionally, the FTC brought actions against technology companies to protect the privacy and security of consumers’ personal information. The FTC challenged deceptive practices and anticompetitive mergers in industries providing a range of other consumer products and services, such as bringing several law enforcement actions to stop practices in the sale and financing of automobiles.
The FTC announced that its “consumer protection accomplishments [were] as varied as: 118 orders for redress, disgorgement, or permanent injunction, and 117 new law enforcement actions,” among others. The FTC is making their focus on fighting fraud known and also spending its time and resources on consumer protection.
A Los Angeles man filed a class action lawsuit in federal court in California on March 30 alleging that three timeshare companies, World Wide Vacations Inc., RCI LLC, and Interval International Inc., violated provisions of the Telephone Consumer Protection Act (TCPA).
The lawsuit alleges that the companies advertise their products and services by calling consumers’ phones using an automatic telephone dialing system (ATDS) and an artificial and/or prerecorded voice, which is prohibited by the TCPA. The plaintiff is seeking a jury trial for the class, statutory damages of $500 per violating call, and treble damages of $1,500 per violating call.
On April 6, 2016, the FCC submitted an amicus curiae brief to the U.S. Court of Appeals for the Second Circuit in a TCPA case in which the plaintiff alleges that the defendant violated the TCPA by placing a robocall to a residential phone line (Bank v. Indep. Energy Grp., LLC et al., Case No. 15-2391 (2d Cir. Apr. 6, 2016)). The U.S. District Court for the Eastern District of New York granted summary judgment for the Defendant, finding that the TCPA did not apply because the Plaintiff used the residential line for business purposes. Plaintiff appealed the decision, and then filed a petition with the FCC seeking clarification on the issue of whether “the TCPA’s restrictions on artificial or prerecorded voice calls apply to calls made to a telephone line used for a home business so long as the line is registered with the service provider as a residential line.” Plaintiff then asked the Court to stay its proceeding pending resolution of the FCC petition. In its brief, the FCC acknowledged that the Commission’s rules do not define the term “residential telephone line” and that it has not “resolved the question of whether, or under what circumstances, a telephone line in a home can support business activities and remain a ‘residential’ line.” As such, the Commission supported the Plaintiff’s request for a stay to allow the Commission an opportunity to address these issues.
A federal court in Florida granted an order for partial summary judgment in favor of a plaintiff in a TCPA case against Navient Solutions, Inc. (NSI), and its affiliate, Student Assistance Corporation (SAC) which amounts to an award of over $360,000 with the potential for treble damages if the plaintiff can prove that the two defendants “willfully or knowingly” violated the TCPA.
Plaintiff Willie McCaskill alleged that Defendant NSI placed 249 calls to a cell phone number ending in -6140 and that Defendant SAC placed 478 calls to the same number. Plaintiff claims that the calls violated the TCPA, the Florida Consumer Collection Practices Act, and the Fair Debt Collection Practices Act.
The parties agreed that the calls were made using an ATDS and that the calls were not made for emergency purposes. However, what was in dispute was whether Plaintiff provided “prior express consent.” The calls were made in regards to a student loan that Plaintiff’s daughter was issued. Defendants claim that the daughter confirmed the -6140 number as her own when she requested a voluntary forbearance on her student loan from Sallie Mae, NSI’s predecessor. The daughter testified that she did not enter in the -6140 number into Sallie Mae’s website but rather entered in her own number.
The court found that there was no evidence that Plaintiff, herself, provided prior express consent, and determined that only remaining question was whether somehow the daughter could and had consented on Plaintiff’s behalf. To prove that “consent” the court held that Defendants needed to establish that the daughter 1) had authority to consent on Plaintiff’s behalf, and 2) that the daughter did, in fact, consent. The court found no evidence of such consent.
A Plaintiff filed a lawsuit in the Southern District of Florida against The CBE Group, Inc. (CBE) and Verizon New England, Inc. (Verizon) alleging violations under the TCPA, among others. All parties moved for partial summary judgment arguing that there is no genuine dispute of material fact regarding Defendants’ liability under the TCPA or CBE’s liability under the FDCPA and FCCPA. The parties contest whether Verizon can be vicariously liable under the TCPA claim for CBE’s alleged violations and whether 24 of the 26 calls placed were made using an ATDS.
The Court found that summary judgment should be entered for Plaintiff and against only CBE on the TCPA claims for two calls placed on April 14 and 15, 2014. However, summary judgment was entered in Defendants’ favor on the remaining TCPA claims.
CBE admits that on April 14 and 15, 2014, it placed 2 calls to Plaintiff using a Noble Systems Predictive Dialer under the mistaken belief that the number was a landline. After CBE found out that the number being called was a cell phone, CBE placed the remaining 24 calls to Plaintiff using CBE’s Manual Clicker Application (“MCA”). In order to place a call using the MCA, an agent must manually initiate the call by clicking a computer mouse or pressing a keyboard enter key. The MCA then uses a Noble Systems device to connect the call to a telephone carriers’ network.
The Court focused on the discussion of human intervention. Plaintiff provided zero evidence that CBE’s ATDS was used and CBE argued that its MCA was used in placing the later 24 calls. This Court cited cases explaining its “primary consideration” in determining what an ATDS is. “To determine whether a dialer is a predictive dialing system, and therefore an ATDS, ‘the primary consideration . . . is whether human intervention is required at the point in time at which the number is dialed.” Brown v. NRA Grp., LLC, No. 6:14-CV-610-ORL-31, 2015 WL 3562740, at *2 (M.D. Fla. June 5, 2015); see also Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1374 (S.D. Fla. 2014) (explaining that “defining characteristic” of ATDS is “capacity to dial numbers without human intervention”).
First, the Court held that “Plaintiff has not created a genuine dispute as to whether Verizon may be held vicariously liable.” Then, the Court said “Plaintiff has not established that a “clear and unequivocal” agency relationship exists between CBE and Verizon.” The Court later addressed the issue of whether the MCA was an ATDS and held that 1) it was not connected to a predictive dialer, 2) the “MCA utilized Noble connecting devices called Corphost1 and Corpost2, which ‘only allow for pass-throughs particularly coming from the MCA application’ and are 'incapable of doing any type of automatic outbound dialing.’” 3) The “Corphost1 and Corpost2 are ‘completely independent and separate from the Noble predictive dialer,’ and such equipment ‘cannot dial predictively, does not use a random or sequential number generator, and does not have the capacity to store, produce, or dial numbers using a random or sequential number generator.’”