October 2022 - Call Compliance News

Fourth Circuit Court of Appeals
The Fourth Circuit Court of Appeals has announced it will hear an appeal in Vance v. DirecTV, LLC, a class action case where the trial judge certified a class of persons who allegedly received calls when their numbers were on the national “do-not-call” registry. DirecTV has appealed noting the trial court allowed non-West Virginia residents to be included in the class despite lacking jurisdiction over those non-residents’ claims.
 
Comment: Depending on the decision, this case could affect how nationwide classes are certified in the Fourth Circuit and other courts.
 
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals has ruled that individuals who publish their telephone numbers do not provide express consent to be called on those numbers, such that the Telephone Consumer Protection Act (“TCPA”) would exempt them from the calls to cell phones restrictions. Chennette v. Porch.com, Inc.
 
Comment: The Plaintiffs were home contractors who published their numbers. Porch.com called their cell phone numbers allegedly using an automatic telephone dialing system (“ATDS”) and the appellate court ruled that publication of their numbers did not amount to “prior express consent.”
 
The Ninth Circuit Court of Appeals has reversed a $925 million TCPA judgment against ViSalis. Wakefield v. ViSalas, Inc. The court directed the trial judge to reconsider the constitutionality of such a huge damages award. In 2019, the jury determined the company made more than 1.8 million illegal calls.
 
California
The California Privacy Protection Agency Board held a public meeting on October 21 and 22,2022 to discuss proposed regulations implementing the California Consumer Privacy Act (“CCPA”). The proposed regulations can be reviewed here.
 
Sephora, Inc. has entered the first settlement in a California Attorney General action involving the CCPA. Sephora allowed third-party companies to create consumer profiles for marketing but did not give consumers the right to opt out of the sale. The settlement involved a payment of $1.2 million and disclosure to consumers.
 
Florida
A Florida court has denied a sender of ringless voicemail “interlocutory” appeal of its order, which ruled that ringless voicemail was subject to the TCPA. Weister v. Vantage Point AI, LLC.
 
Comment: An interlocutory appeal is allowed in narrow circumstances before the trial case is over to allow an appellate court to rule on an initial issue. Here, Vantage Point argued that ringless voicemail was not subject to the TCPA and the TCPA was unconstitutional regarding its regulation of advertising messages. The court denied these arguments, and denied Vantage Point’s interlocutory appeal.
 
A case has been filed against My Pillow and owner Mike Lindell alleging more than $200 million illegal text messages were sent including messages sent after a “stop” request. Gaudreau, et al. v. My Pillow, Inc., et al. Plaintiff allege Lindell operated a platform called “Frank Speech” and used a number somehow obtained there to send advertising texts from My Pillow.
 
Michigan
A bill has been proposed in the Michigan Senate (SB 1182) which would establish privacy rights for consumers including notice regarding processing and sale of personal data. The “Personal Data Privacy Act” would also require registration of data brokers.
 
Ohio
Two men have pled guilty to sending more than 67,000 calls intended to intimidate residents in minority neighborhoods from voting by mail. Ohio v. John Burkman and Jacob Wohl. The prerecorded messages warned recipients that their vote by mail would provide information to law enforcement and collection agencies.
 
Comment: This criminal plea follows a fine of more than $5 million issued by the Federal Communications Commission against the individuals and their company J. M. Burkman and Associates. The fine is still pending.
 
Oklahoma
Oklahoma’s “mini-TCPA” (HB 3168) goes into effect November 1, 2022.
 
Comment: Please contact me to discuss applicability of these new rules to your business. The law contains a lengthy exemption list.