Last week, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking proposing to “ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.”

According to the FCC, the proposed rule’s intent is to prevent lead generators from obtaining consent to receive calls and texts from multiple “partner companies” identified through a hyperlink rather than on the same page where consent is obtained. Implementing this rule could drastically change the way lead generators obtain consent for marketing calls and texts under the Telephone Consumer Protection Act (TCPA).

Continue Reading FCC Proposes Rule to “Close the Lead Generator Loophole,” with Business-Changing Ramifications

Last week, a magistrate judge in U.S. District Court for the Western District of North Carolina dismissed a Telephone Consumer Protection Act (TCPA) lawsuit brought by a plaintiff who claimed calls made by an insurance lead generator to her cell phone number, which was registered on the national Do Not Call (DNC) registry, were unlawful. The decision takes a view contrary to that of at least one other district court in the Fourth Circuit, but sides with a district court in Texas in finding that the do not call prohibitions of the TCPA do not encompass cell phones.

Does this latest decision, Gaker v. Q3M Insurance Solutions et al., mean that telemarketing calls to cellphone numbers listed on the national DNC list are actually OK? Probably not. For starters, since 2003, the Federal Communications Commission (FCC) has allowed cell phone numbers to be registered on the DNC list and interpreted the TCPA’s do-not-call prohibitions to encompass cell phone numbers. Other courts have followed the FCC’s lead in this matter. However, the judge’s reasoning in the Gaker case is interesting to consider, particularly for anyone following a textualist reading of Congress’s laws.

Continue Reading North Carolina Judge Says Cell Phones Not Subject to Federal Do-Not-Call Protections

For years, lead generators have obtained telephone numbers for their clients to call by obtaining the consumer’s consent to receive calls from certain entities specifically identified by the lead generator. A typical model uses language that asks for the consumer’s consent, via a checkbox or otherwise, to receive marketing calls from a few of the lead generator’s marketing partners named in the consent request.

A popular variation of this model is to include, instead of a list of partners by name, a clickable reference to “marketing partners” in the consent language. The specific marketing partners are visible only when the consumer clicks the link and views whatever list of marketing partner names the lead generator has provided.

Sometimes, the marketing partners list has several dozens, hundreds, or thousands of names.  With such long lists, one might ask: How many names on the marketing partners list is too many to evidence meaningful consent by the consumer to receive calls or texts? As recently declared by the Federal Communications Commission (FCC), the answer is 5,329.  As a practical matter, the number might be a whole lot less.

Continue Reading Telemarketing Lead Generators: How Many “Marketing Partners” Is Too Many?

On March 10, Atrium Hospitality LP entered into a consent decree with the Federal Communications Commission. The agreement included a burdensome compliance plan and a $35,000 penalty for the hotel and asset management company. Atrium is just the most recent organization whose primary area of work extends beyond telecommunications to be investigated and ultimately penalized by the FCC.

In many industries, cell phones still have not replaced hand-held radios, which are often used for internal communications by security services, cleaning staff, and maintenance teams. These radios are used at manufacturing and industrial facilities, hotels, golf courses, athletic stadiums, and many other facilities that rely on private radios for staff communication.

Continue Reading Use of Private Radios by Industry Increases Risk of FCC Non-Compliance

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

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

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

Telemarketers are all too aware that automatic telephone dialing systems (“autodialers”) are a hot topic in the litigation world. The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Federal Communications Commission’s (“FCC”) implementing rules, 47 C.F.R. § 64.1200, prohibit making any autodialed call or text message to cell phones without the called party’s prior express consent (with express written consent required for marketing calls). However, as we have noted previously, no one seems to know the full extent of devices that are properly classified as autodialers under the TCPA. As a result, parties have been fighting over the proper meaning of autodialer in the courts, and numerous petitions have been submitted to the FCC requesting clarification. As our TCPA Alert highlights, the lawsuits continue to pour in, while the FCC prepares clarifications and guidance that could remove some of the uncertainty.
Continue Reading TCPA Autodialers 101: What Makes an Autodialer and What’s Next from the FCC

With the FCC’s recent record fine of $7.5 million against Sprint Corp. for alleged Do-Not-Call violations, the more restrictive prior express written consent rule for marketing calls made to cell phones by an autodialer, and the continuous filing of class action complaints (See TCPA Update for recent filings), it is easy to understand why companies are wary of liability under the Telephone Consumer Protection Act (“TCPA”).  As we’ve discussed previously, general uncertainty around how to interpret certain provisions of the TCPA has resulted in numerous petitions being filed with the FCC.

Although many areas still require clarification, the law around vicarious liability under the TCPA continues to develop.  Most recently, on July 2, 2014, the Ninth Circuit weighed in on Thomas v. Taco Bell Corp. in an unpublished decision that addresses vicarious liability under the TCPA. Let’s take a closer look.

Continue Reading No Agency, No Claim: Taco Bell and the TCPA’s Vicarious Liability Standard

Over the past couple of months, we have been waving the caution flag in the air while attempting to warn businesses about the potential liability for violations under the TCPA.  In our previous posts, we noted the numerous consumer lawsuits that have been filed against businesses throughout the country, a list which continues to grow on a weekly basis (see our TCPA Update for more recent filings).  On May 19, 2014, the Federal Communications Commission (“FCC”) announced a record $7.5 million fine against Sprint Corp. (“Sprint”) in a settlement for violations of the “Do-Not-Call” law, which should send a clear message to telemarketers that class actions are not the only threat to a telemarketer’s bottom line.  Indeed, the FCC’s statement on the settlement explicitly states:

We expect companies to respect the privacy of consumers who have opted out of marketing calls.  When a consumer tells a company to stop calling or texting with promotional pitches, that request must be honored.  Today’s settlement leaves no question that protecting consumer privacy is a top enforcement priority.

First, a brief refresher of the “Do-Not-Call” law’s history and basic statutory framework may be helpful.  Under 15 U.S.C. § 6151, the “Do-Not-Call Registry Act of 2003” went into effect in 2003, establishing a national registry for consumers to opt out of telemarketing calls for free.  The statute formally ratified the FTC’s do-not-call registry provision of the Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(1)(iii).  The “Do-Not-Call Implementation Act of 2003,” 15 U.S.C. § 6152 et seq. authorized the FCC to issue do-not-call regulations under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.  As a result, in June 2003, the FCC supplemented its TCPA rules to also include a national Do-Not-Call list.  As a result, businesses must comply with both FCC and FTC regulations when making telemarketing calls.  Note that the FCC Guide on Unwanted Marketing Calls indicates the law applies only to personal landline and wireless phones—not business phones.  The “Do-Not-Call” law also exempts calls made with express prior written consent, calls made by nonprofit organizations, or calls from a person or organization with an established business relationship. 
Continue Reading Caller Beware: FCC’s Record “Do-Not-Call” Fine Highlights Liability Under TCPA