On October 27, 2015, the Missouri Attorney General filed a lawsuit against two telemarketing companies that solicit donations on behalf of charitable organizations in the state, and against the companies’ co-owners.  Regular readers of this blog know that these have been very eventful times for telemarketers, as the U.S. Supreme Court considers the breadth of relief to which a plaintiff is entitled under the Telephone Consumer Protection Act (“TCPA”), other federal courts opine on the definition of an “autodialer,” and the Federal Communications Commission releases consumer complaint data weekly.

Missouri’s action is not simply an example of piling-on: it is a stark reminder that telemarketers who work for nonprofit organizations must still comply with many of the TCPA’s provisions (as well as those of the TCPA’s cousin, the Telemarketing Sales Rule (TSR)).  Some businesses that operate in the nonprofit sector – particularly the charity sector – believe that laws impacting the commercial industry do not similarly apply to them; this can be a costly mistake. 
Continue Reading “Show Me” State Shows No Mercy: Missouri AG Files Suit Against Charity Telemarketers

Last month, we blogged about the U.S. District Court for Northern District of California’s recent decision entered in Luna v. Shac, LLC, — F. Supp. 3d –, No. 14-cv-00607 (N.D. Cal. Aug. 19, 2015), which awarded summary judgment to the defendant-gentleman’s club in a Telephone Consumer Protection Act (“TCPA”) class action.  You can read that post here.  In short, the court held that the defendant’s dialing/texting platform did not constitute a prohibited autodialer under the TCPA in the wake of the FCC’s July 2015 omnibus TCPA Order – i.e., (1) adding numbers to a database (either by manually typing the phone numbers, or by uploading or cutting-and-pasting from an existing list of number); (2) drafting the content of the text messages for each campaign; and (3) selecting the numbers to call and clicking “send” (one-click) to transmit the messages–because of the level of human intervention in dialing. Notably, summary judgment briefing in Luna wrapped up before the FCC Order was released, but the plaintiff noticed the Order as supplemental authority in opposition to the defendant’s motion for summary judgment. The defendant responded explaining why the FCC Order did not pose an obstacle to summary judgment.  The court also cited the Order in its decision.
Continue Reading Postscript to Luna v. Shac LLC: Human Intervention Still Precludes Finding That Strip Club’s Dialing Platform Constitutes an Autodialer Under the TCPA

By  charlieanders2 [CC BY-SA 2.0 via flickr]
By charlieanders2 [CC BY-SA 2.0 via flickr]
In the most recent installment of the Batman movie franchise, The Dark Knight Rises, Anne Hathaway’s character, Selina Kyle, whispers ominously into Bruce Wayne’s ear, “There’s a storm coming, Mr. Wayne.  You and your friends better batten down the hatches . .

The days of on-air fast-talking contest announcements are coming to an end.  Last Thursday, the FCC adopted revised rules that allow broadcasters to disclose contest rules on an Internet website, as opposed to reading them over the air.  Prior to this rule change, under the FCC’s “Contest Rule” (47 C.F.R. Section 73.1216), broadcasters that advertised a contest on-air were required to fully disclose the “material terms” of the contest and then conduct the contest substantially as announced or advertised – a requirement that was adopted almost four decades ago, and which the FCC now acknowledges is inconsistent with the way Americans obtain information today.

Those that want to take advantage of the new Internet website option must comply with the requirements that the FCC lays out in the Report and Order, including: 
Continue Reading Hear! Hear! FCC Modernizes Contest Rules for Broadcasters

On August 19, 2015, in Luna v. SHAC, LLC, No. 5:14-cv-00607 (N.D. Cal.), the Northern District of California issued one of the first decisions interpreting the Telephone Consumer Protection Act’s (“TCPA”) definition of “automatic telephone dialing system” (i.e., autodialer) following the FCC’s July 2015 omnibus TCPA orderLuna may serve as guidepost for future litigants, as the key to the court’s decision lies in the degree of human involvement in the call making process.

In Luna, the defendant-gentleman’s club engaged a third-party mobile marketing company to provide a web-based platform for sending promotional text messages to its customers.  The process to send the text messages through the web-based platform involved multiple steps, all of which required human involvement.  First, an employee would input telephone numbers into the platform manually, or by uploading or cutting and pasting an existing list of phone numbers.  Next, the employee would log in to the platform to draft the message content.  The employee, then, would designate specific phone numbers to which the message would be sent.  Finally, the employee would click “send” on the website to transmit the message to the defendant’s customers.  The messages could be transmitted in real time or as prescheduled messages sent at a future date. 
Continue Reading Court Holds That Human Intervention Covers Strip Club From Liability in TCPA Autodialer Class Action

On July 10, 2015, the Federal Communications Commission (“FCC”) released its much-anticipated Telephone Consumer Protection Act (“TCPA”) declaratory ruling, expanding on the positions announced at its June 18 Open Meeting on important TCPA issues.  The ruling resolves 21 requests for clarification, and, in particular, confirms that an “automatic telephone dialing system” (i.e., an autodialer) includes devices that do not “currently” or “presently” have the capacity to dial random or sequential phone numbers without human involvement.  This will be a controversial ruling.  In fact, ACA International immediately filed a lawsuit in the U.S. Court of Appeals of the D.C. Circuit following the release of the ruling, alleging that the ruling expands the scope of the TCPA further than Congress intended.  Over the next week, we will be exploring the ruling in more detail, but today we analyze arguably the most controversial issue:  the definition of autodialer. 
Continue Reading FCC Releases Long-Awaited TCPA Ruling

For over a year, telemarketers have anxiously awaited clarity on a number of issues relating to the Telephone Consumer Protection Act (“TCPA”), including the treatment of reassigned numbers and the definition of “autodialer.”  At the June 18, 2015, Open Meeting held by the Federal Communications Commission (“FCC” or “Commission”) to vote on updates to the TCPA, the FCC previewed its positions on a number of these issues.  Staying true to the language in the fact sheet circulated by Chairman Tom Wheeler several weeks earlier on May 27, the FCC majority adopted a broad interpretation of “capacity,” emphasizing that the definition of autodialer includes the future or “potential” capacity to dial random or sequential numbers.  This decision could lead to even more devices being classified as autodialers and more litigation.  The FCC also addressed concerns regarding telemarketers’ potential liability for calling reassigned numbers, the limited exceptions for urgent circumstances, and the technological ability to block “robocalls.”

As we have noted in the past, there have been ongoing debates within the FCC and among the courts regarding how broadly “autodialer” (or “automatic telephone dialing system” as is used in the Act) should be defined under the TCPA.  Autodialer consistently has been defined as, “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers,” but until today, there was no clear guidance as to whether “capacity” meant present capacity or future, potential capacity with courts going different ways in their interpretations.  The FCC’s new guidance considers any technology with the capacity, present or future, to dial random or sequential numbers an “autodialer.”  This is troubling to telemarketers because almost any device, with the right engineering, can be programmed to record and redial telephone numbers.  In his dissent, Commissioner O’Rielly highlighted this issue, noting that under the new, expansive definition, the FCC had to use a rotary phone as an example of a device that is not an autodialer.  Despite the deep frustration expressed by the two dissenters, the majority has provided an expansive definition of “autodialer” that will maintain telemarketers’ status as prime targets for class action litigation. 
Continue Reading FCC Open Meeting May Open TCPA Class Action Litigation Floodgates . . . Further

After months of speculation and numerous petitions to the agency, Federal Communications Commission (“FCC”) Chairman Tom Wheeler issued a fact sheet on Wednesday, May 27, addressing two dozen petitions seeking clarity on FCC enforcement of the Telephone Consumer Protection Act (“TCPA”) and proposing significant actions intended to strengthen consumer protections related to unwanted calls and text messages.

In particular, the chairman’s proposal addresses the meaning of the ever-controversial definition of “autodialer,” the right to revoke consent to be called, the treatment of reassigned numbers, and the application of the statute to political calls to wireless numbers.  The FCC is scheduled to meet to vote on the proposed updates on June 18 at an open meeting.  If adopted, big changes could be in store for telemarketers.  We provide a brief overview of the proposals below. 
Continue Reading FCC Chairman Wheeler Proposes Significant Updates to TCPA Rules

keepcalmLast week, a federal judge in the Northern District of California denied AT&T’s motion to dismiss the FTC’s lawsuit against the company concerning its advertising and business practices for its mobile wireless data plans.

As we noted last fall, the FTC accused AT&T of misleading millions of its customers by marketing “unlimited” data plans, but then “throttling,” or reducing data speeds, for unlimited plan customers after they used a certain amount of data in a given billing cycle.  As a result of the throttling, customers’ smartphone applications, such as GPS, would not function as they would under higher internet speeds.  The FTC asserted that AT&T had been throttling data speeds for its unlimited data customers since 2011, and that it has throttled at least 3.5 million customers a total of more than 25 million times. 
Continue Reading Think You Are Exempt from FTC Jurisdiction? Think Again, Judge Says after Throttling AT&T’s Motion to Dismiss FTC Lawsuit

It seems as if every few weeks, a new court decision weighs in on how to interpret the Telephone Consumer Protection Act (“TCPA”), especially the meaning of “automatic telephone dialing system” (“autodialer”) and “called party.”  Trade associations and telemarketers have petitioned the Federal Communications Commission (“FCC”) for clarification, hoping to reduce the compliance burden and prevent lawsuits from aggressive plaintiff’s attorneys (See TCPA Update for recent filings).  Now, fourteen United States Senators have provided their two cents, not on the specific meaning of any definitions, but rather the general direction the FCC should take when clarifying the rules. The Senators’ clear message:  Don’t weaken the TCPA’s protections for consumers.

On January 28th, fourteen Senators signed a letter to Chairman Wheeler at the FCC expressing “deep concerns” that the proposed changes being considered by the FCC would “undermine the intent and spirit of the TCPA.”  The letter discussed the purpose of the TCPA, indicating that it was passed by Congress to protect consumers from intrusions into the home by telemarketers.  Emphasizing the importance of broader protection for consumers, the letter explained that “by banning autodialing and pre-recorded calls to land lines and mobile phones, with certain exceptions, and establishing the National Do Not Call Registry, the law created a zone of privacy that remains hugely popular with consumers to this day.”  In closing, the letter reiterated: 
Continue Reading Some Senators Make an Unsolicited Call to the FCC