February 2022 - Call Compliance News

Federal Communications Commission

The Federal Communications Commission (“FCC”) has written a cease-and-desist letter to Great Choice Telecom, LLC alleging that it is transmitting illegal robocall traffic. The FCC states that it will authorize all voice service providers to block the telecom’s traffic if it does not stop the illegal robocalls within 48 hours as of February 10, 2022. In re: Great Choice Telecom, LLC; In re: Telecom Carrier Access, Inc.

California

A California court has dismissed a Telephone Consumer Protection Act (“TCPA”) claim based on texts which Plaintiff alleged were sent using an automatic telephone dialing system (“ATDS”). Eggleston, et al. v. Reward Zone USA LLC, et al. The court disagreed and ruled that the Supreme Court held an ATDS must use a number generator in some way to qualify as that type of equipment. The court also rejected that a text was a “artificial or prerecorded voice” subject to the TCPA’s cell phone call ban. “Plaintiff’s interpretation is simply beyond the bounds of common sense.”

A California court has issued a mixed ruling in a TCPA debt-collection case where a collector called the debtor more than 100 times after Plaintiff requested to be contacted only in writing on a previous telephone call. Franco v. EGS Financial Care, Inc. The court dismissed TCPA claims based on her previous ruling but allowed Fair Debt Collection Practices Act (“FDCPA”) and state debt collection law claims to continue. The judge also allowed a common law claim of intrusion to continue, holding that whether calls intentionally imposed on Plaintiff when she had a reasonable expectation of privacy and the intrusion was “objectively offensive” were matters to be decided by jury.

Comment: The previous court decision had ruled that the Plaintiff did not have a claim under 47 U.S.C. § 227(b) of the TCPA because she did not allege Defendant used an ATDS as its system did not randomly or sequentially generate telephone numbers. The Court noted that “[i]t would be wildly impossible for Defendant to randomly or sequentially generate phone numbers in hopes of reaching the Plaintiff-debtor.”

A California court has denied certification of a class based on a prerecorded call intended for a customer but made to Plaintiff after Defendant mistakenly entered 1 digit of the phone number into its records. Bustillos v. West Covina Corporate Fitness, Inc. Plaintiff alleged violation of the TCPA and moved to certify a class of all recipients that were called with the prerecorded message from Gold’s Gym. The prerecorded message was to former members and guests inviting them to join or rejoin. Each of the guests had consented to receiving communications from the gym including prerecorded messages. The court ruled Plaintiff’s situation was not typical of the other members of the class as the other persons were not called in error and that she could produce no evidence that there were other people who received wrong number calls.

Comment: Although Defendant won this case, prerecorded messages, especially marketing messages, are subject to more state and federal rules than live voice messages, and you should very carefully consider compliance before starting your prerecorded call campaign, especially one conducted by a third-party vendor.

A California court has dismissed a TCPA class action brought for purported violations of the national “do-not-call” registry. Sapan v. Benefytt Techs, Inc., et al. Plaintiff’s counsel had previously sued the same Defendants on behalf of a different Plaintiff and ultimately lost the case when the Ninth Circuit ruled the class could not be certified. Moser v. Benefytt Techs, Inc., et al. The Court of Appeals ruled the class could not be certified because it included non-California resident plaintiffs, and thus the court did not have jurisdiction. The appellate court noted that the unnamed class members were not yet parties to the case when it was filed, and the Defendant therefore did not waive this personal jurisdiction argument.

Florida

A Florida court refused to decertify a class of entities who received unsolicited faxes on their stand-alone fax machine purportedly from MasterCard. Scoma Chiropractic, P.A., et al. v. Dental Equities, LLC, et al. The Defendants had argued that a court would have to determine whether the company received a fax online or on a physical machine and that should prevent certification. The court disagreed and held MasterCard had made these arguments already.

Comment: MasterCard allegedly sent more than one million fax advertisements pursuant to a COBRA-ending contract with a company intending to create a credit card that would cater to doctors. This case could involve more than $175 million in statutory damages.

The Florida House and Senate are considering bills which would revise Florida’s “mini” TCPA bill, for example (HB 1095, SB 1564).

Comment: When the “mini” TCPA passed last year, it caused a small wave of litigation based on the uncertain definition of “automated system” and the law. Hopefully, the legislature will clarify the meaning of that term to avoid unnecessary litigation.

A Florida court has ruled that the government debt-exemption to the TCPA protected Florida Department of Education which attempted to collect student loans from the Plaintiff. Dressler v. Florida Dept. of Education. Because the exemption was in place at the time of the calls and had not been struck down by the Supreme Court yet, the judge ruled the Florida Department of Education had no TCPA liability.

Massachusetts

The Massachusetts Senate is considering a bill (SB 2687) which would create the Massachusetts Information Privacy and Security Act. It would require registration for entities which sell information of more than 10,000 individuals and do not have a direct relationship with those individuals.

A judge has refused to dismiss a TCPA text message case brought against a debt relief company. Visco v. Creditors Relief, LLC. The judge first noted that a text message is a call as the term is used in the TCPA. The judge ruled that the allegation of ATDS use was sufficient for the case to continue and did not require “specific details” regarding the system at the pleading stage. In the complaint, Plaintiff alleged he heard a “pause” prior to hearing a live voice.

Comment: The “pause” argument implies that the calls were made without human intervention, but this is the wrong test for determining an ATDS after the Supreme Court’s decision in Facebook v. Duguid. The Supreme Court ruled that an ATDS must use a “random or sequential number generator” to create or store telephone numbers and that the human intervention test was no longer valid.

Oregon

A bill has been proposed in the Oregon House (HB 4017) to require registration of data brokers. Any entity that collects, sells, or licenses personal data of another person will be required to register although financial institutions, consumer reporting institutions, and entities with an actual relationship with the consumer are exempt. The bill could become effective immediately if a provision in the draft is adopted declaring the law is needed and there is a state of emergency.

West Virginia

A court has dismissed a TCPA class action based on a fax which offered a free book to a chiropractor. The court ruled that the free book was not an “unsolicited advertisement” as defined in the TCPA and not subject to the TCPA’s fax ban. Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC. 

Comment: The court noted that the offer was for a free book, and “alleging an underlying and distant commercial purpose does not change that.” Plaintiff’s attorneys Anderson + Wanca have filed hundreds of fax cases but this case may hinder this legal argument.