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In a pair of Notices of Apparent Liability for Forfeiture this week, the Federal Communications Commission (FCC) has proposed a collective $8 million in fines against telecommunications company Lingo Telecom and political consultant Steven Kramer.

Robocalls, Generative AI, and Deepfakes

The FCC alleges Kramer violated the Truth in Caller ID Act. According to the FCC, two days before the New Hampshire 2024 presidential primary election, Kramer orchestrated a campaign of illegally spoofed and malicious robocalls that carried a deepfake audio recording of President Biden’s cloned voice telling prospective voters not to vote in the upcoming primary.

To transmit the calls, he worked with voice service provider Lingo Telecom, which incorrectly labeled the calls with the highest level of caller ID attestation, making it less likely that other telecommunications providers would detect the calls as potentially spoofed. For this reason, the FCC is also pursuing forfeiture against Lingo, alleging a violation of the STIR/SHAKEN rules for failing to use reasonable “Know Your Customer” protocols to verify caller ID information in connection with Kramer’s alleged illegal robocalls.Continue Reading FCC Proposes $8 Million in Fines Against Telecom Company and Political Consultant for Using Deepfake Generative Artificial Intelligence

As we recently previewed, the Federal Communications Commission (FCC) published its Proposed Rule that would codify its updated guidance on the Telephone Consumer Protection Act (TCPA). The TCPA regulates calls and text messages sent using automated technology and is frequently litigated. Below are the major proposed rule changes on which the FCC seeks comment.Continue Reading FCC Releases Proposed Rule for Codifying Updates to the TCPA

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

Last week, the plaintiff in Alvarez v. Sunshine Life & Health Advisors LLC — the first Florida Telephone Solicitation Act (FTSA) action to settle on a class basis — filed his motion for preliminary approval of the settlement. And the settlement is an interesting one. The settlement provides that the defendant will make available $2,556,000 as part of a common fund from which the following amounts will be paid:

  1. Each settlement class member who submits a valid claim form will receive a check in the amount of $300;
  2. An incentive award to the plaintiff in the amount of $5,000 for his service as the putative class representative;
  3. Attorneys’ fees and costs totaling 20% (or $511,200) of the common fund; and
  4. The costs of settlement notice and administration.

Continue Reading About That First Florida Telephone Solicitation Act Class Action Settlement…

Everyone remember that Alvarez v. Sunshine Life & Health Advisors LLC putative Florida Telephone Solicitation Act (FTSA) litigation we’ve covered? You know, the one where the plaintiff’s counsel argued that the FTSA extends to text messages, whereas its federal counterpart, the Telephone Consumer Protection Act (TCPA), “doesn’t even regulate text messages”?  It’s the case where…

New Jersey traditionally has had the most onerous state Do Not Call law, which prohibited all telemarketing sales calls to cell phones.  The law did not even allow such calls to be made with the consumer’s consent.  With 90% of Americans owning cell phones and 58.8% of households being either entirely or predominantly wireless today, that was particularly bad news for telemarketers.

However, on January 29, 2015, New Jersey Governor Chris Christie signed into law state Senate bill 1382, which significantly loosens the state’s restrictions on telemarketing to cell phones.  The bill clarifies the state’s Do Not Call law to prohibit only unsolicited telemarketing sales calls from being made to cell phones.  The amended law – which took in effect immediately upon Governor Christie’s signing – defines “unsolicited telemarketing sales call” as any telemarketing sales call other than a call made (1) in response to the express written request of the consumer called or (2) to an existing customer.  The New Jersey Senate Commerce Committee clarified that the latter carve-out from the state Do Not Call law permits the placement of collection calls and calls to follow up on customer’s contractual obligations “unless the customer has stated to the telemarketer that the customer no longer desires to receive the telemarketing sales calls of the telemarketer.”Continue Reading “Glory Days”: New Jersey Allows Certain Telemarketing Calls to Cell Phones

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

Not to be outdone by last year’s changes to Federal Communication Commission rules under the Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission (“FTC”) has teed up a number of issues that may be the focal point of big changes to the Telemarketing Sales Rule (“TSR”).  Similar to the TCPA rules, the TSR includes the FTC’s version of Do-Not-Call rules and restrictions on the use of prerecorded message calls.  Unlike the TCPA rules, the TSR imposes certain disclosure and other requirements for outbound calls, some inbound calls, and upsells on both outbound and inbound calls.  When the FTC announced on July 31, 2014, that the TSR has come due for review, it asked for public comment on issues that suggest the FTC is considering restrictions on telephone “data pass” and broader application of negative option and other disclosure requirements to inbound calls currently exempt from the scope of the TSR.  While the ongoing stream of lawsuits filed under the TCPA continues, it is worth taking a closer look at the FTC’s Rule Review, Request for Public Comments (“Request”) to determine what additional restrictions/requirements could be on the horizon for telemarketers. 
Continue Reading TSR Under Review: What Telemarketers Should Know about FTC’s Request for Public Comments

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