The FCC has issued a final rule regarding recent efforts to allow voice service providers to take action to reduce illegal robocalls. Specifically, this rule allows providers to “proactively block telephone calls when the subscriber of a phone number requests that calls purporting to originate from that number be blocked, and when calls purport to originate from three categories of unassigned phone numbers: Invalid numbers, valid numbers that are not allocated to a voice service provider, and valid numbers that are allocated but not assigned to a subscriber.” Read the full rule here. Learn about robocall laws and robocall regulations. FCC telemarketing laws are complex, so contact a telemarketing attorney to ensure you understand all telemarketing regulations.
Court Affirms Decision That Flu Shot Reminder Text Didn’t Violate TCPA
The Second Circuit Court of Appeals has affirmed a 2016 decision made by a district court in Latner v. Mount Sinai Health Sys. that a text message sent to remind Latner about getting a flu shot did not violate the TCPA. The text sent by Mount Sinai said, “It’s flu season again. Your PCP at WPMG is thinking of you! Please call us at 212-247-8100 to schedule an appointment for a flu shot.” Latner had previously provided his number to Mount Sinai and consented to receive messages for “Treatment Purposes.” The Court of Appeals held that this message would fall into that category, and thus no violation of the TCPA had occurred. Read the court’s decision here. Learn about telemarketing rules and telemarketing compliance. Contact a TCPA lawyer if you need help defending yourself from a TCPA lawsuit.
Charitable Telemarketing Under Criticism
An article published in the New Haven Register highlights some problems that charitable telefunding companies can potentially face. The article discusses a recent complaint filed by the Ohio Attorney General against The Ohio Cops for Kids, a charity that helps children whose families were victims of crime. The complaint alleges that just two percent of the funds raised by the charity went to help victims and that the charity was defrauding consumers. The Ohio Cops For Kids had hired a for-profit telefunding company to make calls and ask for donations. Read the article here. Read about charitable telemarketing laws.
InfoCision Settles FTC Charges for Violations of TSR
InfoCision, Inc., an Ohio-based telefunding company, has settled charges with the FTC for allegedly violating the FTC’s Telemarketing Sales Rule (TSR). The TSR requires telemarketers calling on behalf of a charity to promptly disclose which charity they are calling for and state the the purpose of the call is to ask for a donation. The FTC charges state that, “InfoCision’s telemarketers called consumers and told them at the start of the call that they were not calling to ask for a donation.” The settlement includes a $250,000 civil penalty against the defendant, and requires that they no longer make any “false or misleading statements designed to induce anyone to pay for goods or services or make a charitable contribution.” Read more here. Learn more about nonprofit telemarketing regulations.
Plaintiff Ken Johansen filed a lawsuit against National Gas & Electric LLC for alleged violations of the TCPA. Johansen claims that he was called by the defendant on three different occasions during June of 2017, even though his number was on the national Do-Not-Call list. On December 20, the court granted the Defendant’s motion to stay class discovery, citing that Johansen had “posed” as an interested customer in order to find out more information about National Gas & Electric. The opinion states, “The court finds that the admissions of plaintiff in his affidavit and response brief cast serious doubts on his fitness to serve as an adequate class representative.” Read the full opinion here. If you or your business are facing a TCPA class action lawsuit, make sure you have a TCPA lawyer on your side. Save yourself headaches like this by understanding and applying telemarketing compliance principles. Make sure you understand DNC regulations, autodialer laws, cell phone telemarketing laws, robocall laws etc. A telemarketing lawyer can even perform a telemarketing compliance audit of your company, which can help you avoid plaintiffs and regulators.
FTC Offers MLM Guidance
The FTC has published an 18-point online guidance document to help Multi-Level-Marketing (MLM) business owners understand and comply with the many laws that affect that industry. Topics cover compensation structure, similarities and differences between MLMs and business opportunity organizations, inventory loading, etc. Read the guidance document here.
FTC Fines Company For COPPA Violations
The FTC has filed a complaint against VTech, an electronic learning products company, for alleged violations of the Children’s Online Privacy Protection Act (COPPA). According to the complaint, VTech allegedly made false claims about the encryption that is used on their website to protect consumer data. Also, VTech allegedly “Failed to provide sufficient notice on its website about the information it collects from children, how it uses that information, and its disclosure practices.” Read the full complaint here.
The FTC has published its biennial report on the National DNC Registry. Below are some of the more significant findings:
- Over 2,000 businesses and other entities paid more than $12.6 million to access the registry during fiscal year 2017.
- When the DNC Registry was implemented in 2003, 10 million numbers were added within the first four days.
- As of September 30, 2017, the registry included nearly 230 million numbers.
- The FTC is tracking new direct marketing technologies and analyzing how they have led to an increase in DNC related consumer complaints.
- The top six categories that consumers file DNC complaints about are: 1) Reducing Debt 2) Dropped call or no message 3) Vacation and timeshares 4) Warranties and protection plans 5) Calls pretending to be government, businesses, or family/friends and 6) Medical and prescriptions.
Learn more about DNC regulations, Do-Not-Call laws, telemarketing compliance, and cell phone do-not-call laws. Consult with a telemarketing attorney to learn how to reduce complaints about your business.
FTC Cases Resulted in Over $6 Billion in Refunds Between July 1, 2016 and June 30, 2017
On December 22nd, the FTC announced that over $6 billion had been paid out in consumer refunds as a result of the actions that the agency had taken against businesses between July 1, 2016 and June 30, 2017. This doesn’t include judgements that have been suspended based on the defendants’ inability to pay. Read the FTC press release here.
Hooters TCPA Settlement Claims Period Ends
The settlement claims period for a TCPA class action lawsuit against the restaurant chain Hooters has closed. Hooters will now pay out $1.3 million in gift cards to class members. In August 2017, Hooters agreed to settle the lawsuit, which was filed by plaintiff Michael Etzel. Etzel alleged that Hooters had sent unsolicited text messages to at least 55,000 individuals. The text messages allegedly said, “Hooters Fans: Our mClub has moved! Don’t worry, you’ll still receive exclusive news, just from a new number. Reply STOP to unsubscribe Msg&Data Rates may apply.” Although they had proper opt-out language, the plaintiffs alleged that Hooters never obtained the proper consent to send the messages in the first place. If your company does any text marketing, make sure you have proper, well-documented consent in order to avoid headaches like this. Read more about the settlement here. If you are facing a TCPA class action, make sure you have a telemarketing attorney or a TCPA lawyer on your side. Learn about cell phone telemarketing laws.
On December 14th, the FTC announced that they have settled a case against a company allegedly offering business opportunities and coaching services. The defendants in the case – Bob Robinson, Michael Sirois, and a number of their companies – were charged with violating the FTC Act and the FTC’s Business Opportunity Rule, which requires business opportunity sellers to make “certain disclosures to help consumers evaluate the opportunity” and “prohibits such sellers from making earnings claims without adequate substantiation.” Under the settlement, the defendants are banned from selling business opportunities and business coaching services. They are also facing a partially suspended $35 million judgment and are required to turn over $1.5 million worth of funds and assets. Read the FTC press release here. Many businesses like this engage in telemarketing. Make sure you understand FCC telemarketing laws.
New York Telefunder Being Targeted by State Attorney General
Telefunding business owner Mark Gelvan was banned from telefunding in the State of New York in 2004 after his phone agents allegedly impersonated police officers when they were calling potential donors. Regulators also alleged that Gelvan’s company misrepresented how much of the donations would actually go to his charity clients and how much he would keep for himself. Now, the New York Attorney General is taking action against Gelvan again, alleging that he is operating a new telefunding business behind the scenes, with other individuals acting as the business owners on paper. Read an article with more details about the issue here. Telefunders as well as telemarketers should be sure not to impersonate any government employee or agency. They should also never misrepresent what their products or services actually provide or accomplish. This will help reduce complaints and regulatory attention. Learn about charitable telemarketing laws and nonprofit telemarketing laws. Whether your company does for profit or nonprofit telemarketing, make sure you understand all telemarketing rules. Consult with a telemarketing attorney to ensure full telemarketing compliance.
In Viggiano v. Kohl’s Department Stores, Inc., plaintiff Amy Viggiano alleged that Kohl’s sent her unsolicited text messages after she had opted-out from receiving previous messages. Viggiano replied to the marketing messages by saying, “I’ve changed my mind and don’t want to receive these anymore,” “Please do not send any further messages,” and “I don’t want these message anymore. This is your last warning!” The terms and conditions that she accepted when she originally opted-in included the following language: “To stop receiving future Text Messages from Kohl’s pursuant to the Kohl’s Mobile Sales Alerts Program, you can text any of the following commands to 56457: STOP, CANCEL, QUIT, UNSUBSCRIBE, END.” Learn about the laws related to texting cell phones.
The court ruled that because Viggiano didn’t include the right opt-out wording in her texts, “Plaintiff has not plausibly pled a TCPA violation”. The defendant’s motion to dismiss was granted. Read the court’s opinion here. Learn more about telemarketing to cell phones, telemarketing rules, do-not-call regulations and telemarketing compliance. Contact a TCPA lawyer if you find yourself involved in a telemarketing lawsuit.
FTC Obtains Court Order Shutting Down Debt Collection Business
The FTC has obtained a court order against a company that was allegedly deceiving consumers by convincing them that they owed false debts. According to the complaint, the callers would act like lawyers from debt collection agencies and demand that the call recipients send in money to settle the debts. Included in the court order is a $702,059 judgment against the defendants. Read more about this FTC order here.
The Spokeo defense has taken another negative blow. Under the Spokeo decision, the Supreme Court ruled that in order for a plaintiff to seek relief in Federal Court, some type of concrete damage or injury must have actually occurred. Defendants in TCPA lawsuits have tried to use this decision as a defense, arguing that plaintiffs who receive unwanted phone calls have not suffered any real injury. Early last month, the Northern District of Alabama held in Hossfeld v. Compass Bank that just one unsolicited phone call was enough to cause a concrete injury. This ruling, along with other recent similar court decisions, has made using the Spokeo defense much more difficult. A copy of the ruling can be accessed here. If you are involved in a TCPA lawsuit, contact a TCPA attorney.
CFPB Sues Debt Settlement Services Provider
On November 8th, the Consumer Financial Protection Bureau (CFPB) filed a complaint against a telemarketing company that offers debt settlement services. The CFPB accused Freedom Debt Relief, LLC (Freedom) of misleading consumers by making false promises about what their services could achieve for them. For example, Freedom would allegedly promise their customers that they would negotiate with collections companies to settle their debts for much cheaper, when in reality Freedom knew that the collection companies would often be unwilling to engage in any reduced settlement talks. Read a copy of the CFPB’s complaint here. Learn about telemarketing rules and telemarketing compliance. Ensure you understand and implement the advice of a telemarketing attorney if before you get on the phones.
Judge Denies TCPA Defendant’s Motion to Dismiss Over “Clear and Conspicuous” Opt-In Language.
In Barrera v. Guaranteed Rate Inc., plaintiff Samuel Barrera filed a TCPA lawsuit alleging that the defendant, mortgage company Guaranteed Rate, called his cell phone using an ATDS without the proper consent. Guaranteed Rate filed a motion to dismiss, arguing that Barrera had consented to receive such calls when he opted-in online. The Judge denied the motion, holding that the opt-in consent language on the website was not “clear and conspicuous.” Read a copy of the Judge’s decision here. Learn more about telemarketing regulations, robocall laws, and autodialer rules.
Merchant services company FleetOne has agreed to pay $750,000 to settle a class action lawsuit over unsolicited faxes. Plaintiff Swinter Group Inc. alleged that FleetOne did not have the proper consent to send the faxes and that the faxes failed to include the required opt-out language. If your company does any type of fax marketing, be sure to always include the necessary opt-out language. Click here to read more about this settlement. Learn more about telemarketing rules here. There are a variety of rules to be aware of, including: Do-Not-Call rules, Robocall laws, autodialer rules, cell phone telemarketing rules, etc.
Seventh Circuit Issues Ruling that Ties Attorney’s Fees to Amount Claimed by Class in TCPA Lawsuit
The Seventh Circuit Court of Appeals has issued a ruling that will bring an end to a TCPA case that’s been going on for nearly a decade. In Holtzman v. Turza, Plaintiff Ira Holtzman filed a class action TCPA lawsuit after receiving unsolicited marketing faxes from Gregory P. Turza. The District Court ordered the defendants to pay $500 for each of the 8,430 class members, for a total of $4.2 million. After a few years of appeals and debate over how the attorney’s fees should be calculated, the ruling this week has determined that $167 will be paid to the plaintiff’s lawyers for every settlement check that is cashed. A copy of the court’s ruling is available here. Contact a TCPA lawyer here.
WebRecon 2017 Stats
WebRecon, a company that compiles data about lawsuits all across the country, has released some intriguing statistics about TCPA lawsuits this year. Surprisingly, total TCPA lawsuits during 2017 are not on pace to pass last year’s total. This would be the first year since WebRecon started keeping statistics that there would be a decline. The cause for this decline is unknown at this point. Click here to view the numbers. If you are facing a TCPA lawsuit, contact a TCPA Attorney. Watch this short video about how to respond to a TCPA lawsuit.