The midterm elections are just around the corner, and with them could come a host of potential Telephone Consumer Protection Act (“TCPA”) concerns if recent history is any indication.  The TCPA places restrictions on, among other things, robocalls and automated text messages, both of which often are used by political campaigns seeking votes or donations.  Less clear is whether the TCPA actually applies to political campaigns’ calling and texting operations.

The FCC has asserted that the TCPA covers campaign calls according to the Act’s plain language.  But the FCC’s guidance isn’t necessarily heeded by campaigns, as shown by the different treatment of the issue in two recent articles.  One describes the proliferation of robocalls in NYC elections and depicts political campaigns’ actions as politically protected speech that is exempt from the TCPA, directly contradicting the FCC’s stance on the matter.  The other concerns the same scenario in Hickory, NC’s mayoral election, but acknowledges that a campaign’s robocalls may have been TCPA violations, with officials blaming North Carolina election law for the lack of guidance.
Continue Reading One Vote for a TCPA Violation? Campaign Robocalls During Recent Elections Draw Ire

telemarketing lawsIn July 2015, a divided Federal Communications Commission (FCC) issued its omnibus Telephone Consumer Protection Act (TCPA) Order, which modified and ostensibly “clarified” numerous aspects of the TCPA, such as expanding the definition of “automatic telephonic dialing system” (more commonly referred to as autodialer) and concluding that consumer consent to receive calls may be revoked

to be continuedSummer 2017 has seen and will see some well-publicized releases of sequels, remakes, and reboots: Ridley Scott’s Alien Covenant; Johnny Depp back in his starring role as Captain Jack Sparrow in the Pirates of the Caribbean franchise; Stephen King’s It; and the latest installments in The Mummy, Transformers, and Spider Man series, to name a few. Even Baywatch got a big screen makeover.

Not to be left out, on August 1, 2017, the Federal Trade Commission (FTC) announced that, as the Federal Communications Commission (FCC) had done in October 2015, it would be releasing robocall and do not call consumer complaint information. However, the FTC releases such information on a daily basis, whereas the FCC’s release of complaint data is done weekly. According to the FTC’s press release announcing the initiative, “the robocaller phone numbers consumers provide will be released each day to telecommunications carriers and other industry partners that are implementing call-blocking solutions.” An example of the type of complaint information that the FTC releases is below.

Continue Reading Summer of Sequels: The FTC Joins the FCC in Releasing Consumer Complaints Regarding Purported Robocalls and Do Not Call Violations

telemarketing lawsOn March 31, 2017, All About the Message LLC (AATM), filed a petition for a declaratory ruling before the Federal Communications Commission (FCC), requesting that the FCC issue a rule that would declare that delivering a voice message directly into a consumer’s voicemail box does not constitute a “call” that is subject to the Telephone

call centerThe FCC was busy in November.  On November 18, the FCC posted an Enforcement Advisory on robotexting and consumer protection, and on November 21 published a blog on robocalls.  The FCC notes that the Advisory was issued to promote understanding of the clear limitations on the use of autodialed text messages, often referred to as “robotexts.”

The Advisory reminds us that the FCC’s TCPA rules apply to text messages as well as pre-recorded calls, and reiterates that “prior express written consent” is required for autodialed texts that include or introduce an advertisement, whereas “prior express consent” is required for messages that are not commercial in nature.

Continue Reading FCC Posts Enforcement Advisory Alerting Businesses of TCPA Text Messaging Rules

water glassIt has been almost a decade since a water-drinking contest held by an Entercom’s Sacramento radio station resulted in the death of a contestant, but the Federal Communications Commission (FCC) has a long memory.  Last week, the FCC issued a Hearing Designation Order (it can be found here) to determine whether the license held by Entercom – one of the largest station owners in the country – should not be renewed based on new information about the “Hold Your Wee for a Wii” contest.

The 2007 contest challenged participants to compete for a prize by drinking water at regular intervals. To win, a contestant would have to be “the last one standing” (or holding it) – the competitor could not use the bathroom until the competition was over.  The radio station at no point, either before or during the contest, announced the risks associated with the contest in general or water intoxication.  Ultimately, the contest led to the fatal water intoxication of contestant Jennifer L. Strange.  Civil claims for wrongful death were filed against the radio station, which was ultimately found to have been negligent.

Continue Reading Water Drinking Contest Causes Waves at the FCC, Potentially Sinking the Promoter

At the outset of one of his most well-known novels, For Whom the Bell Tolls, Earnest Hemingway quoted part of a meditation from Seventeenth Century poet John Donne (from which the book is titled):

No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee. (Emphasis added.)

Based on a recent Federal Communications Commission (FCC) decision, however, it appears that the Commission believes that the federal government, in fact, is an island entire of itself. Despite tightening regulations over the years to limit the ability of companies to make robocalls, the FCC, on July 5, 2016, issued a ruling that exempted robocalls from the federal government from Telephone Consumer Protection Act (TCPA) coverage. The FCC thinks it knows what kind of calls you like, and wants to make sure you get them.

Continue Reading For Whom The TCPA Bell Tolls . . . Not the Federal Government Says the FCC

Fabio Sassi [CC BY-SA 2.0], via Wikimedia Commons

As the weather changes and I reach for the allergy medicine in my bottom desk drawer, I’m reminded of that old proverb, “March winds and April showers bring forth May flowers.”  March winds also bring plenty of pollen and, apparently, a flurry of activity on the Telephone Consumer Protection Act (“TCPA”) front regarding what constitutes an autodialer and how to determine whether a telephone number is a residential one as opposed to a business line.
Continue Reading The Phone Keeps Ringing . . . But is it a Residential Line and Was an Autodialer Used?

On February 10, a bipartisan coalition of 25 state attorneys general, led by Missouri Attorney General Chris Koster and Indiana Attorney General Greg Zoeller, sent a letter to the Senate Committee on Commerce, Science and Transportation urging passage of the Help Americans Never Get Unwanted Phone Calls Act of 2015 (the HANGUP Act). The letter should be of particular interest to companies in the debt collection industry and to marketers who use debt collectors to resolve delinquent accounts.

The Bipartisan Budget Act of 2015 (the Budget Act) contains a provision, Section 301, that amended the Telephone Consumer Protection Act (TCPA) to allow businesses to use new dialer technology to contact borrowers on cell phones regarding U.S. government-backed debt, such as student loans and VA mortgages. The Budget Act also requires the Federal Communications Commission, in consultation with the Department of Treasury, to promulgate regulations on those calls by August of 2016. The HANGUP Act, introduced by Senator Ed Markey (D-MA), repeals those changes.

Continue Reading State Attorneys General Tell Senate to HANGUP on Robocalls

In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used.  As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and money in potential litigation. We have blogged previously about TCPA autodialers cases (here, here, and here).

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used. 
Continue Reading Pause, Clicking, and Dead Air – TCPA Autodialers as a Story about Nothing