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July Grab Bag

woman taking out a portable speaker from a bag on beach during sunset

Posted by Chris Alarie on Fri, 07/29/2022 - 13:06

Once again, we are gathering the compliance stories that may have slipped through the cracks in the past month.

FCC and State AGs Step Up Enforcement of Auto Warranty Robocalls

As we covered in last month’s grab bag, the Federal Communications Commission (FCC) has been signing agreements to work with state attorneys general in efforts to enforce regulations against illegal robocalls. FCC Chair Jessica Rosenworcel and Ohio Attorney General Dave Yost have taken action on these agreements as part of an effort to stop the traffic of some of the most notorious purveyors of auto warranty robocalls. On July 7, the FCC authorized phone companies to cut off traffic to Roy Cox, Jr., Aaron Michael Jones, their Sumco Panama companies, and international associates. On the same day, Yost filed a lawsuit against those same parties over the same alleged violations. These sorts of auto warranty robocall scams are widespread—the FCC alleges that the targets of these actions are responsible for more than 8 billion calls—and often reflect poorly on the industry as a whole, harming the legitimate callers in these same verticals. The Federal Trade Commission (FTC) took action against a similar auto warranty robocaller back in February.

Notorious Plaintiff Sues Notorious Celebrity Politician

2022 is a midterm election year. As such, political calls and texts are being sent in enormous numbers and political campaigns may find themselves on the receiving end of Telephone Consumer Protection Act (TCPA) complaints. On July 11, one of the more notorious serial TCPA plaintiffs, Andrew Perrong, filed a complaint against the campaign of one of the more notorious Senate candidates, Mehmet Oz, better known as Dr. Oz for his career as a former medical doctor who promotes controversial wellness products on television. Perrong is suing Oz’s campaign over alleged violations of the TCPA’s restrictions on prerecorded calls.

D.C. Circuit Upholds TRACED Act-Mandated Changes to TCPA Exemptions

At the end of June, the D.C. Circuit ruled against a challenge to the FCC’s proposed changes to the TCPA’s exemptions. Section 8 of the TRACED Act mandated that the FCC review the TCPA’s exemptions and the Commission did so with a Report and Order published at the end of December 2020. The FCC’s changes mostly consist of limiting how often certain exemptions can be used with certain periods of time. Previously, there had been no such limit on how often these exemptions could be used.

The plaintiff in Lucas v. Federal Communications Commission apparently found these changes insufficient and requested that the FCC replace the Commercial Purposes Exemption with much more “specific, narrowly tailored exemptions.” The D.C. Circuit did not find this argument to be persuasive, writing, “These arguments are without merit. The Commission’s decision to retain the exemption and establish limits on such calls in accordance with the TRACED Act was reasonable and supported by the record. In its order, the Commission found that commercial non-telemarketing calls should remain exempt because they ‘benefit[] consumers by enabling businesses to communicate with their customers on important matters such as prescription refill reminders, power outage updates, and data security breaches.’”

It is worth noting that the FCC’s changes have not yet been implemented.