Two recent decisions in the Ninth Circuit demonstrate the uncertainty that businesses continue to face under the TCPA
In the case of Thomas v. Taco Bell Corp. the Ninth Circuit recently upheld a lower court’s decision declining to extend vicarious liability under agency principles to the defendant in the case. While the Ninth Circuit found that vicarious liability can apply in cases where there is apparent authority or ratification, the plaintiff failed to meet their burden in demonstrating that either theory should apply.
The district court in Sherman v. Yahoo! Inc., denied a request by the defendant to reconsider the court’s earlier order denying summary judgment. At issues was whether the court erred in their interpretation of what constituted the use of an ATDS, and whether new evidence warranted summary judgment. The court stuck to their earlier decision and rejected the argument that a system must have “present capacity” to be considered an ATDS. Specifically the district court stated:
“This Court therefore finds the clear mandate from the Ninth Circuit requires a defendant challenging a plaintiff’s ATDS showing on a motion for summary judgment to demonstrate that no genuine issue of material fact exist as to whether the equipment at issue has the requisite current and future capacity to act as an ATDS in order to warrant summary judgment.”
This case demonstrates that while some courts are taking the rational position that a system must have “present capacity” to be considered an ATDS, not all courts are doing so. Under a broad interpretation of this decision, what type of system couldn’t have the future capacity to act as an ATDS?
Canadian New Anit-Spam Rules Take Effect July 1st
Canada's anti-spam legislation (“CASL”) comes into force on July 1, 2014. The new law requires prior express and informed consent to send any type of regulated electronic message through any current or future technology, including, but is not limited to: SMS, email and IM.
Businesses wanting to send any type of regulated electronic message will need to: (1) obtain consent, (2) provide identification information, and (3) provide an unsubscribe mechanism.
Violations of CASL, can result in an administrative fine of up to the maximum amount of: (1) $1 million for an individual and (2) $10 million for a business per violation (per electronic message).
You can learn more about these changes here
Canada Updates DNC Rules
After completing their review of the Unsolicited Telecommunications Rules (UTR), the Canadian Radio-television and Telecommunications Commission (CRTC) has announced several changes that telemarketers who send calls of faxes into Canada need to pay attention to.
Effective June 30, 2014 the grace period for adding a number to an internal do-not-call-list (“DNCL”) list is reduced from 31 to 14 days. Keep in mind that all telemarketers subject to the UTR are required to keep an internal DNCL of numbers from consumers who have directly asked that they no longer be contacted. This change does not affect the 31 day grace period for making calls to numbers on the National DNCL.
The UTR have also have been amended to allow telemarketers to provide an email address as an alternative to a physical mailing address for identification purposes in certain scenarios:
• A telemarketer may provide an email address instead of a postal address in response to a request for contact information (Telemarketing Rules, 17(b)).
• A telemarketer may provide an email address instead of a postal address in a fax telemarketing communication (Telemarketing Rules, 19(e)).
• A telemarketer may provide an email address instead of a postal address when making calls using an automatic dialing-announcing device (ADAD) (ADAD Rules, 4(d)).
Additionally, the contract information that telemarketers are required to provide under the UTR must now be valid for 60 days (see Telemarketing Rules, 31, and ADAD Rules, 4(j)).
FTC to Tap Hackers to Ring in Robocall Bandits
The Federal Trade Commission is looking to expand the technological arsenal that can be used in the battle against illegal phone spammers and do not call (DNC) violations by challenging DEF CON 22 attendees to build the ultimate “honeypot” to lure in and identify perpetrators of illegal robocalls. A robocall honeypot is an information system designed to attract robocallers, which can help experts and law enforcement authorities understand and combat illegal calls.