Late last week, Oklahoma Governor Kevin Stitt signed the state’s Telephone Solicitation Act of 2022 (OTSA) into law.

A couple of months ago, as the legislation was working its way through the Oklahoma state legislature, we noted that, like its Florida counterpart – the Florida Telephone Solicitation Act (FTSA) – the law would prohibit “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.)

The OTSA maintains the above-identified autodialer prohibition but, like the FTSA, fails to define what an “automated system for the selection or dialing of telephone numbers” actually is. And, just as with the Florida law, the Oklahoma statute creates a rebuttable presumption that any call or text message to a phone number with an Oklahoma area code is made to an Oklahoma resident or person physically present in the state at the time of receipt. The statute allows for private enforcement and provides for uncapped statutory damages of $500 per violation (potentially tripled if the violation is deemed to be willful or knowing). The law goes into effect on November 1, 2022, likely triggering waves of autodialer litigation.

Continue Reading New Oklahoma Telephone Solicitation Act Is Not OK – But It Does Contain an Important Exemption

The first rule of comparative advertising has always been that you can say pretty much whatever you want so long as you don’t lie.  But there is a new wrinkle—don’t threaten or stalk the competition.  A recent Ninth Circuit decision in Thunder Studios v. Kazal, has shed new light on the extent of protection afforded by the First Amendment to reprehensible and confrontational speech.  The case is quirky in that the individuals protected by the First Amendment were not US Citizens and were not themselves in the US when the “protests” occurred, but the case is a cautionary tale as to the limits of First Amendment protection of comparative claims.  Importantly, however, the case cannot—and should not—be read to provide for an open invitation for competitors to promote or otherwise engage in extraterritorial smear campaigns with impunity.  Indeed, there is nothing in the Ninth Circuit’s opinion to suggest that it should be read to preclude or immunize parties from claims of defamation, product disparagement, or even invasion of privacy torts arising out of similar behavior.  Nor would it likely protect a party from liability from organizing a secondary boycott.  The case is pending en banc review by the Ninth Circuit so stay tuned.

Following the souring of a multimillion-dollar business deal between Australian citizens Roderick David, on the one side and Charif Kazal, Adam Kazal, and Tony Kazal on the other, the Kazals undertook an international campaign to inform the citizens of Los Angeles, California about the “despicable crimes” allegedly committed by David (then a resident of Los Angeles).  The Kazals sent hundreds of emails to David and his employees, hired protesters to picket and distribute flyers near his residence and business—Thunder Studios Inc., in Los Angeles—and had vans emblazoned with their message driven around the city.  Leaflets and signs held by protesters described David as a “corporate thief” and a “fraudster” who “robbed his business partners of $180 million.”

Continue Reading Sticks and Stones May Break Your Competitor, But Protests May Be Protected

Background

Advertisers, e-commerce websites, affiliate networks, and publishers each play a large role in the development of the Internet. One reason they have been able to do so is Section 230 of the Communications Decency Act of 1996 (CDA), which immunizes online interactive services from liability arising from third-party content on their platforms. The CDA does so in twenty-six words:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Through this immunity, the CDA allows online services to host the speech of others, without assuming responsibility for what those users may say or do. No one disputes the premise that Section 230 fosters free expression and the creation of vibrant marketplaces for advertisers and merchants to efficiently and effectively reach consumers. Recently, however, confusion and controversy have arisen as to exactly who and what Section 230 does and does not protect, leading to divisions among court decisions and to calls for legislative “overhaul.” A quick review for merchants, advertisers, agencies, and affiliate networks seems desirable.

Continue Reading An Advertiser’s Guide to Section 230 of the Communications Decency Act

The issue of what exactly is an autodialer, subject to the restrictions of the Telephone Consumer Protection Act (“TCPA”), may eventually be resolved. But for now, the outlook is much like the long-ago Brooklyn Dodger’s chance of winning the World Series: “Wait ‘Til Next Year.” On July 29, 2020, a divided, 2-1 panel in the Sixth Circuit issued its opinion in Allan v. Pennsylvania Higher Education Assistance Agency, deepening the circuit split over the breadth of the TCPA. Specifically, the Sixth Circuit held that any device that dials from a stored list of numbers is sufficient to constitute an “automatic telephone dialing system” (“ATDS” or “autodialer”). This decision comes on the heels of the Supreme Court granting certiorari in Facebook, Inc. v. Duguid, setting the stage for the high court to, hopefully, not only resolve the split among the circuits, but produce a definition of an autodialer that permits the responsible and efficient generation of calls for a broad array of legitimate reasons—indeed in some cases emergency. (Interestingly, in Allan, the defendant opposed the plaintiffs’ motion to stay the appeal pending Duguid. That’s likely because the defendant had previously prevailed on the ATDS issue in the Eleventh Circuit a few months earlier in a consolidated appeal.)

In Allan, the plaintiffs received hundreds of unwanted calls and automated voice messages regarding student loan debt after they had requested to no longer be called; many of these calls delivered a prerecorded message as well. Plaintiffs sued alleging that they did not consent to the unwanted calls; the district court granted summary judgment to the plaintiffs. On appeal, the Sixth Circuit addressed whether the Defendant’s calling platform constituted an ATDS where it created a calling list based on stored numbers and placed calls, connecting recipients to operators.

Continue Reading Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?

At the same time that consumers are turning to the internet to purchase everything – food, diapers, work-from-home office equipment, wine, and impossible-to-find puzzles – e-commerce businesses are facing unprecedented challenges in their ability to fulfill orders: disruptions to their supply chains, sick employees, warehouse and distribution center shutdowns, and a crippled US Postal Service. We thought this was a good time to remind businesses that sell goods (services are exempted) online – or by phone or mail – of their obligations under the FTC’s Mail, Internet, or Telephone Order Merchandise Rule (MITOR, for short). Many states also have look-alike laws or regulations that often impose additional requirements on sellers.

Introduction

MITOR was originally promulgated in 1975 in response to consumer complaints that catalog sellers failed to ship ordered merchandise timely or at all and were not providing refunds in a timely fashion. It was updated several times over the years, including to include telephone and then internet sales.

In sum, MITOR requires that when you advertise, you must have a reasonable basis for stating or implying that you can ship the advertised goods within a certain time. If, however, you make no shipment statement, you must have a reasonable basis for believing that you can ship within 30 days.

Continue Reading Timely Shipping in the Age of COVID-19

It has taken a while, but the FCC has finally realized that the Children’s Television Act (CTA or “Kidvid” as it is called in the industry) is more than somewhat out of date: The media world is not what it was when the CTA was passed by Congress 28 years ago. According to the FCC, among the other changes brought on by the advent of the Digital Age, children are engaging in less “appointment viewing” and in more on-demand, online and other non-broadcast content consumption. The FCC has concluded that the expansion of viewing outlets and the changes in children’s educational and entertainment options warrant a reexamination of some of its rules implementing the CTA. It has issued a Notice of Proposed Rulemaking (“NPRM”), has received comments and can be expected to act on the proposed changes in the next several months.

The NPRM advances several “tentative conclusions” related to the content that broadcasters may count toward satisfying the “Core Programming” requirement. Essentially, the FCC has defined Core Programming as programming that targets children under 13 as the intended audience. The definition will not be changed but the FCC has proposed eliminating several of the Core Programming criteria, specifically, the requirements that Core Programming be (1) at least 30 minutes in length; (2) regularly scheduled; and (3) identified as Core Programming within the content using the designation “E/I,” which stands for “Educational and Informational.” The NPRM is also seeking comments on whether to maintain or eliminate several other Core Programming and reporting requirements, including that (A) Core Programming be broadcast between 7:00 a.m. and 10:00 p.m.; (B) that broadcasters notify program guide publishers about Core Programming; and (C) that broadcasters file quarterly compliance reports with the FCC. Moving forward with the proposed reduction in paperwork associated with the CTA Rules should be a no-brainer; whether the prescriptive scheduling requirement will be changed is harder to predict.

Continue Reading Big Bird Goes Digital: The FCC Undertakes to Modernize Children’s Television

Readers of this blog often learn how the government regulates modern instruments for customer engagement – social media, texting campaigns, e-commerce sites, the use of influencers, and more. Old habits die hard, however, and many marketers continue to use the U.S. Postal Service to connect with consumers. When those mailers want to reach a large audience, Marketing Mail (formerly known as Standard Mail) may be the answer. Mailers use USPS Marketing Mail to deliver catalogues, circulars, flyers, advertising, and both printed and non-printed merchandise designed to enhance the tactile experience of opening the mail and create a positive association with the sender.
Continue Reading USPS Proposal May Cause Direct Mail Advertisers To ‘Go Postal’

“Slamming and cramming” might sound more appropriate in professional wrestling than telecommunications, but it’s the Federal Communications Commission and not the WWE that’s making moves in this area. On June 7, the Commission approved new rules aimed at stopping both slamming and cramming by telecommunications carriers, which we’ve summarized below. On August 16, these new

Most marketers are aware that the FCC has something to do with the regulation of computers and computing peripherals, products that are widely sold online.  Unfortunately, marketers sometimes do not realize that the FCC’s rules also apply to a host of household devices such as coffeemakers, electric razors, car battery chargers, jewelry polishing devices, and similar electronic products that are also widely sold online.  Even more problematic is that the FCC tends to take failure to comply with its rules governing these devices very seriously and can and does assess stiff fines for even innocent violations.
Continue Reading Keep the FCC on Your Radar

telemarketing lawsOn March 23, 2018, the FCC and FTC hosted a joint forum to discuss the issue of robocalls. Consisting of three panels and remarks from key leadership of both agencies, the event marked a significant step in agency cooperation to mitigate consumer frustration from unwanted calls. The panels focused on three issues: (1) challenges facing consumers and industry; (2) recent regulatory and enforcement efforts; and (3) tools and solutions for consumers. FCC Chairman Ajit Pai and FTC Acting Chairman Maureen Ohlhausen delivered opening remarks, with FCC Commissioners Mignon Clyburn and Brendan Carr, as well as FTC Commissioner Terrell McSweeny, also speaking.

Panelists identified number spoofing as the biggest issue magnifying the robocall problem. As a result of spoofing, consumers have lost trust in answering the phone, leading to a significant rise in call completions not occurring. Telephone providers have attempted to combat the spoofing problem by screening calls, but there is skepticism as to the long-term viability of screening mechanisms for fear that robocallers will learn to circumvent screens and consumer trust might further erode due to the lack of transparency in what calls are being blocked. Businesses in particular have felt the frustration of lost consumer trust, and panelists claimed that legitimate business calls have declined by 20-30%. Representatives from the communications industry called for technology that would provide an intercept code for businesses to receive notice that their calls had been blocked, but stressed that transparency on the consumer side, too, was paramount.

Continue Reading This Argument Is No Longer in Service: Did FCC and FTC Drop the Issue of Reassigned Numbers as a Solution to Robocalls?