November 2022 - Call Compliance News

Federal Communications Commission

The Federal Communications Commission (“FCC”) has ruled in a unanimous decision that “ringless” voicemail are considered calls as defined by the Telephone Consumer Protection Act (“TCPA”). The ruling is effective immediately. See link.

Comment: This doesn’t mean that “ringless” voicemails are illegal, it just means that they are legal only if sent in compliance with the TCPA and other applicable law. Providers of “ringless” voicemail have argued for many years that they were not subject to the TCPA, and courts, and now the FCC, have generally disagreed.

Federal Trade Commission

The Federal Trade Commission (“FTC”) extended a deadline to comply with the changes to the “Safeguards Rule” of the Gramm-Leach-Bliley Act. Covered entities are now required to comply by June 9, 2023. The “Safeguards Rule” requires non-banking financial institutions, such as mortgage brokers, to develop security programs to keep customer information safe.

Eleventh Circuit Court of Appeals

The Eleventh Circuit Court of Appeals has affirmed a case brought by repeat TCPA plaintiff Kenneth Johansen where his class was denied certification because Johansen is not an adequate class representative. Johansen v. Bluegreen Vacations Unlimited, Inc. The earlier ruling held that Johansen was inadequate because he provided false contact information and admitted that it was his “typical practice” to do so to lead callers on that he was interested in their product. The Court affirmed the lower trial court without comment.

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has rejected the argument that an automatic telephone dialing system (“ATDS”) is a system that uses automation to determine the sequence in which numbers are dialed. Borden v. eFinancial, LLC. The court held the system must “generate and dial” random or sequential telephone numbers to be an ATDS.

Comment: After the Facebook decision, some plaintiffs argued that a system could be an ATDS if it called loaded numbers in a sequential order. Most courts, and this appellate court, have now ruled that this argument is wrong—a system is an ATDS only if it can generate telephone numbers to dial, not simply call loaded numbers in a numerically sequential order. The court therefore affirmed the dismissal of the case.

California

A California court has ruled that a chat bot is not a “prerecorded” voice as that term is used in the TCPA. Risher v. Adecco, Inc., et al.

Comment: Giving the word “prerecorded” its ordinary meaning, a text or writing even from a chat bot is not “prerecorded.”

A California court has dismissed a TCPA claim because the plaintiff did not adequately claim the defendant used an ATDS. Patton v. CBC Settlement Funding, LLC, et al. Patton did not allege facts sufficient to plausibly claim the caller used an ATDS.

Georgia

A Georgia court has ruled that a plaintiff alleging receipt of an illegal fax could not add an additional claim in his motion for default judgment. RenewalMD, PC v. Shanklin. The court noted, “plaintiff levies new allegations that were not even implied by the complaint.” Because plaintiff alleged facts that were not found in the complaint, it denied plaintiff’s motion for default judgment.

New Mexico

A New Mexico court has ruled there is no private right of action based on the content of a prerecorded call not requiring FCC disclosures. Escano v. RCI, LLC, et al. This is in line with previous cases prohibiting plaintiffs from suing for “technical” violations of the TCPA regulations.

Comment: The TCPA requirements require that all artificial or prerecorded voice telephone messages state clearly at the beginning of the message the identity of the business responsible for initiating the call. There are no exceptions to this restriction.

Pennsylvania

The Pennsylvania Attorney General Josh Shapiro has announced a lawsuit against Fluent Inc. alleging illegal prerecorded calls to Pennsylvania residents offering car warranties. Pennsylvania v. Fluent Inc., et al. Fluent allegedly obtained the consumers’ telephone numbers by offering gift cards to amazon and Walmart but failed to include disclosures that the consumers also consent to receive telemarketing calls from multiple potential sellers.