The Eleventh Circuit recently issued an opinion in the case of Lary v. Trinity Physician Financial & Insurance Services which sheds light on several TCPA related issues. First the court held that a single fax (or call) could result in multiple violations of the TCPA, for which damages could be awarded. Next the court held that in order to be awarded treble damages under the TCPA, a Plaintiff must allege facts or present evidence to establish that the defendants knew that their actions were in violation of the law. The court concluded “If we interpreted the statute to require only that the violator knew he was making a ‘call’ or sending a fax, the statute would have almost no room for violations that are not ‘willful or knowing.’” Hopefully other courts will adopt this point of view, and require plaintiff’s seeking treble damages in TCPA lawsuits to prove the defendants actually knew that their conduct would violate the law. That being said, ignorance of the law is not an advisable strategy.
On May 18, 2015 the U.S. Supreme court announced that they will be hearing an appeal on the case of Campbell-Ewald Company v. Gomez. At issues in this case, is whether a defendant business can terminate a TCPA class action lawsuit by offering the lead plaintiff everything that he could individually recover under the law if he were to win at trial.
The plaintiff in this case allegedly received multiple text messages in violation of the TCPA, and is seeking to represent a class of as many as 100,000 people who received similar messages. In an effort to avoid the case being certified as a class action, the defendant offered the plaintiff $1,503 for each alleged violation (more than he could recover if he got everything he asked for at trial). However, the plaintiff refused to settle, and the lower courts allowed the case to proceed as a class action anyway.
The Supreme Court will now decide whether it should give the business community a powerful tool to cut down on the surging number of TCPA class action lawsuits they now face. While a business could theoretically face greater liability per violation through this approach, being able to avoid class action status would certainly take the wind out of the plaintiffs bar’s sails. Law firms are much less likely to take a TCPA case that deals with only one or even a handful of violations, as compared to a case with hundreds of thousands of potential violations.
FCC Chairman Tom Wheeler recently announced that he plans on naming Alison Kutler as Acting Chief of the Consumer and Governmental Affairs Bureau (“CGB”), effective June 1. The CGB is responsible for overseeing consumer protection statutes (such as the TCPA and CAN-SPAM Act) for which the FCC has authority. Prior to her appointment, Ms. Kutler was most recently Senior Vice President at VISA Inc.
Last week the FCC also issued Citations and Orders to three companies for making non-telemarketing robocalls to cell phones without prior express, in violation of the TCPA. The companies receiving Citations include: Call-Em-All, LLC, M.J. Ross Group, Inc., d/b/a PoliticalRobocalls.com, and Ifonoclast, Inc., d/b/a Phonevite. While most of the FCC’s recent TCPA related enforcement actions have been against telemarketers, these recent cases demonstrate that companies making non-marketing robocalls to cell phones still have to follow the rules or be prepared to face the consequences.
Combat TCPA Claims and Class Actions with TCPA Experts at the Clearwater Compliance Summit
The TCPA is one of the fastest growing and controversial of all of the consumer protection statutes. The FCC has just issued its 2015 Declaratory Ruling making the controversy even more robust. This Summit will provide an overview of the law, an overview of the latest legal and case law developments relating to TCPA, Compliance concerns, enforcement trends and recent FCC guidance, the latest on the definition of an autodialer, trends in TCPA litigation; key court decisions; lessons learned, Defense strategies for combatting the new wave of TCPA claims and class actions, and practical guidance for what lies ahead including state compliance rules around telemarketing and automated calls.
Improve your company’s liability management by joining us in Clearwater for expert compliance tips from the top TCPA and contact center attorneys in the game. Now’s your chance to clarify hot-button TCPA issues like automated vs. manual dialer definitions, cell phone number reassignment and other restrictive cell-calling prohibitions. CLE Credit may be available.
Clearwater Compliance Summit. Florida (Tampa Area). December 3.
In a recent decision in the United States District Court for the Northern District of Illinois, the court held that the defendant, who used two different phone systems – an autodialer and a separate click to call system – had not violated the TCPA by using the click to call system to call cell phone numbers, because that system did not have the capacity to dial numbers without human intervention. The court also appears to have adopted the “present capacity” standard used by a number of other courts.
This is good news for the numerous call centers that have begun using separate dialing systems in order to avoid violating the TCPA. If you are using a separate dialing system, that does not have the capacity to autodial, that system can be used to call cell phones (at least in the Northern District of Illinois) without violating the dialer provisions of the TCPA.
Join us for an important update on telemarketing law and the TCPA. Hear from telemarketing attorney Eric Allen. Eric represents hundreds of sellers, telemarketers, dialer vendors and lead generators across the country in compliance and litigation matters. Highlights will include:
- A quick recap on the TCPA and the new wireless and dialer rules
- Innovative techniques for obtaining "express written consent"
- New risks and new solutions related to VoIP and repeat litigators
- State and Federal Do-Not-Call summary
- An important reminder about state licensing and bonding, and how to find exemptions
May State Holiday Calling Alerts
Don't overlook state regulations during this month including Rhode Island Independence Day and Memorial Day.
Monday, May 4th is Independence Day in Rhode Island. Make sure to adjust your campaigns accordingly.
Alabama, Louisiana, Mississippi, Rhode Island, and Utah all prohibit outbound calls on Memorial Day, Monday, May 25th.
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In a recent post to the FTC’s Business Blog, FTC attorney Bikram Bandy answered some basic questions about complying with the robocall provisions of the Telemarketing Sales Rules (“TSR”). Similar to the FCC’s rules issued pursuant to the TCPA, the FTC prohibits certain robocalls. According to Bandy:
“If you’re trying to sell something, you can’t place robocalls to any phone number – even numbers that aren’t on the Do Not Call Registry. The only exception is if the consumer has given signed written permission to receive robocalls on behalf of your company (not your affiliates, marketing partners, etc. – your company). The written permission must include the consumer’s phone number and has to clearly and conspicuously explain that he or she gives your company permission to make robocalls. The bottom line: If you don’t have valid written permission, you can’t send robocalls. Period.”
Keep in mind that the FTC’s jurisdiction doesn’t extend as far as the FCC’s and that it is very difficult to use the private right of action under the TSR, so businesses are much more likely to get sued by private parties under the TCPA. "The FTC, however, can still go after businesses that violate the TSR, and can fine businesses for up to $16,000 per violation."
State Do Not Call Holidays for April 2015
- 4/3/15: Good Friday. Louisiana
- 04/27/2015: Confederate Memorial Day. Alabama and Mississippi
Follow the Compliance Guide to track state calling restrictions for the rest of 2015. Check other state rules you may not be aware of that can wreak havoc on your contact centers and clients.