Posted by Chris Alarie on Wed, 06/30/2021 - 12:10
2021 has already been an eventful year for compliance. A number of stories have understandably held the attention of the marketing and compliance industries, including Florida’s new telemarketing law and the ongoing consequences of the Supreme Court’s decision in Facebook v. Duguid. However, a number of other notable stories deserve some attention. This article will wrangle some of these important pieces of stray compliance news.
Last March, the Federal Communications Commission (FCC) adopted rules setting a June 30, 2021 deadline for major telecommunications carriers to adopt STIR/SHAKEN protocols. Small carriers had previously been given a 2023 deadline but that was recently moved up to June 30, 2022. While the likelihood is that most carriers had adopted the protocols in the weeks and months leading up to this deadline, June 30 still represents a significant milestone for callers. Call deliverability should now be a significant concern for marketers as the FCC has clearly put the onus on carriers to prevent illegal robocalls, perhaps at the cost of shutting off a certain amount of legitimate traffic.
Supreme Court Sets New Limits on Standing for Class Actions
On June 25, the Supreme Court issued a decision that figures to have a significant impact on Telephone Consumer Protection Act (TCPA) class actions. In TransUnion LLC v. Ramirez, SCOTUS significantly narrowed the scope of the class in a class action against a credit reporting agency that violated the Fair Credit Reporting Act (FCRA), setting a precedent for how the threshold for Article III standing is determined in class actions.
TransUnion had compiled credit reports with erroneous information, wrongly identifying nearly 8,000 people as terrorists, drug dealers, or other such defamatory designations. However, it only transmitted that information to third parties for 1,800 of those people. SCOTUS determined that the class would be limited to those 1,800 individuals and that the other 6,000 individuals about whom erroneous, defamatory information was compiled but not sent would not have Article III standing.
While the Supreme Court deciding to rewrite the FCRA may have negative consequences for the U.S. Constitution, this is undoubtedly a positive ruling for marketers as this precedent is almost certain to be relevant for TCPA class actions. It is essentially a stronger version of another significant case about Article III standing and the FCRA—Spokeo v. Robins—that has influenced issues of standing in TCPA class actions.
Court Rules Against Caller for Not Producing Written DNC Policy
While it does not have the headline-grabbing price tag of other decisions, a district court in Massachusetts rendered an unusual and potentially alarming ruling in a TCPA lawsuit. The case—Perrong v. All Star Chimney Solutions, Inc.—involves infamous serial plaintiff Andrew Perrong. The plaintiff alleged that he received four calls from the defendant despite his number appearing on the National Do Not Call (DNC) Registry. He also alleged that the defendant “did not have a written policy, available on demand, pertaining to do-not-call requests." The court ruled in his favor, albeit only for $500, not the $2,000 that Perrong had sought. The court found that the failure to have a written policy was only a single TCPA violation, not one that would be penalized on a per-call basis.
Senator Proposes Bill That Would Allow for Jail Time for TCPA Violations
In May, Nevada Senator Catherine Cortez Mastro proposed a new federal telemarketing law named the DO NOT Call Act—with the acronym at the beginning of the law’s name standing for “Deter Obnoxious, Nefarious, and Outrageous Telephone”. The most notable aspect of the bill is that it would allow for criminal penalties for TCPA violations of up to 1 year in prison or up to 3 years in prison for aggravated violations. It is extremely unlikely that this bill will pass in its current state but it is notable that Senate Majority Leader Chuck Schumer is among the cosponsors.
FCC Beta Tests the Reassigned Numbers Database
Having long since blown past all previous deadlines, the FCC’s slow implementation of its much-needed reassigned number database has become a forgotten story over the past year. However, there is a key update: the FCC announced that it has begun beta testing the database. Users can sign up to test it here. There is still no proposed date for the full implementation of the database but this is the first encouraging sign of progress in many months.