The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking intending to strengthen consumers’ ability to revoke consent to receive both robocalls and robotexts, in addition to strengthening callers’/texters’ obligations to honor such requests in a timely manner.

The Telephone Consumer Protection Act (TCPA) restricts callers from making robocalls and robotexts unless they have received the prior express consent of the called party, subject to a couple of exemptions. The FCC’s proposed action would broaden a consumer’s ability to revoke consent in “any reasonable way.” For example, simply using words such as “stop,” “revoke,” “end,” or “opt out” in response to a call or text would create a presumption, absent contrary evidence, that the consumer has revoked consent.

Continue Reading FCC Proposes Codifying New TCPA Consent Rules in Notice of Proposed Rulemaking

The Federal Trade Commission (FTC) recently announced a settlement with a group of related companies and two of their officers that used a merchant of record (MoR) model to facilitate sales for merchants. According to the FTC, the MoR businesses violated the law by assisting and facilitating fraudulent telemarketing sales of tech support services and laundering credit card charges through the defendants’ own merchant processing accounts.

The MoR model is one of several novel models payments companies and platforms have launched in the marketplace. While numerous compliance questions related to money transmission and unlawful payments aggregation abound, this particular FTC case warns that consumer protection agencies are taking a closer look at risks presented by the MoR model.

Continue Reading Increasing Regulatory Scrutiny for the Merchant of Record Model

This week, a federal court in California issued an 80-page opinion that painstakingly walks through claims made against several celebrities who had promoted the Ethereum Max (EMAX) cryptocurrency, also called tokens.

The lawsuit was filed last year against Kim Kardashian, Floyd Mayweather, and former professional basketball player Paul Pierce, challenging their EMAX endorsements and social media posts. Since then, the plaintiffs have amended the complaint multiple times.

Among other issues it addressed, this week’s court decision provided a helpful reference point showing where a court aligned with and diverged from the Federal Trade Commission’s Endorsement Guides.

First, the court found that the “#AD” disclaimer in the following post made clear that Kardashian was being paid, even though it appeared toward the bottom of the post.

Continue Reading Court Provides Guidance on Social Influencer Advertising in Ethereum Max Crypto Lawsuit

Last month, Florida Gov. Ron DeSantis signed the much-anticipated amendment to the Florida Telemarketing Solicitation Act (FTSA) into law, significantly limiting the ability of private plaintiffs to file telemarketing lawsuits under the FTSA. While this will undoubtedly stem the tide of lawsuits under Florida’s law, class action plaintiffs’ attorneys have wasted no time in finding new states to file suit.

Less than a week before Florida amended the FTSA, a plaintiff filed the first lawsuit under Oklahoma’s Telephone Solicitation Act (OTSA), Streater v. WhaleCo, Inc. The lawsuit challenges text messages sent by WhaleCo., the operator of an online marketplace, alleging violations of the Telephone Consumer Protection Act and the OTSA. According to the complaint, the defendant sent multiple texts with coupon codes to the plaintiff to “advertise and call attention to Defendant’s products and related services,”

Continue Reading Florida Limits Its Telemarketing Law, but Other State Laws Continue to Gain Traction

As part of a broader campaign to go after “robocall” violations, the Federal Communications Commission (FCC) has announced a $5,134,500 fine against a company and its owners for making 1,141 robocalls in 2020 that violated the Telephone Consumer Protection Act (TCPA). The company told recipients of the robocalls that if they voted by mail, their personal information would “be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.” The case is a strong reminder that political calling campaigns are also subject to the TCPA.

Both the TCPA and the FCC’s rules prohibit prerecorded voice calls to wireless telephone numbers without the recipients’ prior express consent, and this is true regardless of the caller’s intent. These restrictions apply equally to both telemarketing and informational calls, including all non-commercial and political calls. The only exception is for calls that are made for an emergency purpose.

Continue Reading FCC Levies $5 Million Fine for Political Calling Campaign That Violated the TCPA

Last month, Florida governor Ron DeSantis signed into law amendments to the Florida Telephone Solicitation Act (FTSA) that scale back the scope and reach of the statute, bringing it in line with federal TCPA standards and providing needed comfort to good faith marketing companies operating in Florida.

Since the last statutory changes in July 2021, the FTSA has severely impacted telemarketing and text marketing businesses marketing to Florida residents and otherwise conducting business in the state. Like the federal Telephone Consumer Protection Act (TCPA), the FTSA prohibits using automated dialers to call or text consumers without their consent.

The Florida law also enables consumers to recover $500 per call and provides for up to $1,500 in treble damages for willful or knowing violations, plus reasonable attorney’s fees and costs. To date, the FTSA has also had much more lenient standards for bringing a claim, resulting in Florida being a hotbed of state-level litigation in the area.

Continue Reading Florida Adopts Changes to the Florida Telephone Solicitation Act

In the wake of AMG Capital Management v. FTC and Liu v. SEC, uncertainty has loomed as to how courts should measure the consumer redress available to the FTC under Section 19 of the FTC Act. Earlier this month, a court in the District of Arizona squarely addressed this issue.

Before AMG, the FTC used its ability to obtain injunctive relief in federal court under Section 13(b) of the FTC Act for violations of Section 5 of the FTC Act to also obtain equitable monetary relief. As we’ve previously discussed, the Supreme Court’s decision in AMG put an end to that. As a result, the FTC turned to its authority under Section 19 to obtain redress for rule violations.

The Supreme Court’s decision in Liu, which we also previously covered, held that equitable monetary relief cannot exceed a defendant’s gains after legitimate business expenses. This results in the quandary of how to reconcile this with the text of Section 19, which provides for “such relief as the court finds necessary to redress injury to consumers.”

Continue Reading Addressing the Redress: District Court Limits the Scope of FTC Consumer Redress for Rule Violations

Starting June 27, operators of online marketplaces will need to comply with a new federal statute, the Integrity, Notification, and Fairness in Online Market Retail Marketplaces for Consumers Act or INFORM Act.

The purpose of the law, which passed in December as part of the appropriations bill, is to help combat e-commerce fraud and the sale of counterfeit goods online. Although the law directly applies to the operators of these marketplaces, individuals and companies that sell their products on the marketplaces will be impacted.

The INFORM Act requires online marketplaces to undertake specific due diligence of “high-volume third-party” sellers. The statute defines high-volume third-party sellers as sellers that, in any continuous 12-month period during the previous 24 months, (1) have entered into 200 or more discrete sales or of new or unused consumer products and (2) have an aggregate total of $5,000 or more in gross revenues on the marketplace. The law does not apply to used goods or to services sold via online marketplaces.

Continue Reading New Law Regulating Online Marketplaces Will Impact Sellers, Too

The Supreme Court’s opinion last week in National Pork Producers Council v. Ross raises more questions than it answers regarding what state laws might violate the dormant Commerce Clause. California prohibits the in-state sale of pork that comes from pigs raised in “cruel” conditions—even though nearly all the pork sold in California is raised in other states. The Court upheld that law in the face of a dormant Commerce Clause challenge. But the Court’s fractured reasoning makes it hard to predict how other laws might fare.

As a refresher, the Dormant Commerce Clause stems from Congress’s Article 1, Section 8 authority to regulate commerce “among the several States.” In contrast to preemption, which limits states’ authority in an area where Congress has acted, the Dormant Commerce Clause limits states’ ability to regulate even when there is no relevant congressional action. 

Continue Reading Could Texas Ban the Sale of Union-Made Goods? After <em>National Pork Producers</em>, We Still Don’t Know

Last week, the Federal Trade Commission issued a Notice of Penalty Offense regarding substantiation for product claims to 670 companies in the health-related marketing space. This new Notice is yet another signal from the FTC that it intends to aggressively pursue its enforcement agenda using all available tools, including previously long-dormant avenues, like its Penalty Offense Authority.

Using its Penalty Offense Authority, the FTC can seek civil penalties from a company or individual that engages in conduct the FTC has determined was unfair or deceptive in a litigated administrative enforcement proceeding, provided the FTC can prove they had actual knowledge that the conduct was unlawful. The purpose of the notice letter is to allow the FTC to argue that the recipients had the requisite “actual knowledge” to support civil penalties of up to $50,120 per violation.

Continue Reading New Notice of Penalty Offenses: Are You in the Danger Zone?