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.
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.
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.’”
2016 PACE National Conference & Expo
SANTA ROSA, Calif.--Contact Center Compliance (DNC.com) has been selected as the winner of the prestigious Technovation award for innovation in compliance for its Litigator Scrub solution at the 2016 PACE Convention & Expo in Orlando, Florida.
Litigator Scrub™ in an innovative TCPA (Telephone Consumer Protection Act) Compliance solution that allows companies to directly address the problem of vexatious litigators preying on the contact center industry and TCPA liability, so that they can avoid class actions and identify potential litigators before a call or text ends up generating a damaging TCPA lawsuit or class action. Litigator scrub had become the latest must have TCPA and DNC solution for companies that operate telephone or text outreach that eliminates over 100,000 known professional litigants.
Implementing comprehensive TCPA compliance across a contact center enterprise can be complicated without a trusted compliance provider. Fortunately, Contact Center Compliance has developed innovative TCPA solutions such as Litigator Scrub combined with wireless and VoIP identification, plus wireless owner verification to avoid wrong number liability under TCPA.
Ronald Allen, CEO says, “TCPA has changed the landscape of business liability for every company that sells anything to consumers. Our goal is to offer cost effective technology to directly decrease our client’s liability from legal class actions.” Allen continues, “This product identifies known class action litigants in a completely measurable way and no company that sells to consumers directly should be without it.”
About Contact Center Compliance (DNC.com)
Contact Center Compliance is an experienced cloud based compliance provider that reduces the risk complexity of TCPA regulations. DNC.com provides several unique compliance solutions including: TCPA Litigator Scrub, TCPA Wireless and VoIP scrubbing, as well as an award winning Compliance Guide with Compliance Training. They also have a wireless owner verification solution to help with wrong party contacts now covered by TCPA. Learn why leading companies trust DNC.com to manage their TCPA liability.
For further information, contact:
Contact Center Compliance Corporation
We all remember Lynn v. Monarch Recovery Services, in which the 4th Circuit Court of Appeals decided calls made to a residential VoIP number where the owner was charged for the call, were illegal, just as if they had been made to a wireless phone without written consent.
Separately, in the recent 5th Circuit case of Rivero v. America's Recovery Solutions, we find a similarly devastating result. The Court held that American Recovery's calls violated the TCPA because his plan was not unlimited. Specifically, the Court held that, "Plaintiff's VoIP service is not an unlimited calls/flat fee plan as the TCPA presumes is generally the case with a traditional residential telephone line...[r]ather, it is 'a service for which the party is charged for the call...because each call by Defendant depletes Plaintiff's store of limited minutes.
There is no regulatory exemption to this provision because the TCPA permits the FCC to create limited exemptions only to the prohibition of calls to certain cell phones (under subsection (A)) and to residential lines (under subsection (B)). Accordingly, Defendant's calls to Plaintiff's VoIP phone line violated the TCPA."
Contact Center Compliance's scrub plans include an option to enable VoIP scrubbing for TCPA to help you mitigate risk in this heightened state of litigation.
In this very charged election year, numerous candidates and political non-profits are turning to the telephones as a means of spreading their message, encouraging voter turnout, and of course, raising money. Remember that political calls are exempt from some, but not all, telemarketing laws and regulations. The FTC has no direct jurisdiction over political non-profit entities so long as they are truly conducted not for the profit of the owners and operators. In 2015, however, the FTC filed a major DNC case against a so-called non-profit when the Commission determined it was actually being conducted for the profit of its owners, despite what the formation documents claimed.
Either way, under the Patriot Act, the FTC does have jurisdiction over for-profit telefunders trying to raise money for political campaigns. Regarding the FCC, calls by or on behalf of a tax exempt political non-profit are exempt from many TCPA restrictions, but not all. For example, non-profit political calls are exempt from scrubbing against the national DNC list, but are still required to obtain "express consent" (not written) before autodialing a cell phone. Political organizations who reach out over the telephone should avoid the temptation to believe they are exempt from telemarketing law and should ensure they are suppressing the proper lists - cells and litigators, for example. Political organizations who autodial cell phones with prior consent should perform wrong/reassigned number scrubbing so they don't call the wrong party. Also remember that most states have some form of professional solicitor license requirement, which normally applies even when the caller is exempt from the state's telemarketing license.