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Telemarketers celebrating the new year should be aware of Maryland’s new telemarketing law, Stop the Spam Calls Act, which took effect January 1, 2024. Like the federal Telephone Consumer Protection Act (TCPA), Maryland now prohibits telephone solicitations (i.e., marketing calls and texts) without the prior express written consent of the called party. But unlike the TCPA, which prohibits the use of an “autodialer” or “ATDS,” the Maryland Act prohibits the use of an “automated system.”

What constitutes an autodialer has been thoroughly litigated up to the U.S. Supreme Court. There, the justices decided that an autodialer is a device that “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.”Continue Reading Maryland Rings in the New Year with an Expanded Telemarketing Law

This week, the Federal Trade Commission (FTC) announced a Proposed Stipulated Order with lead generator Response Tree LLC and its president, resolving allegations that the company violated the Telemarketing Sales Rule (TSR) and Section 5 of the FTC Act. The complaint alleged that the company operated “consent farm” websites that misled consumers into providing their telephone numbers, falsified lead data, and obtained leads without requisite consent, resulting in unlawful prerecorded calls and calls made to telephone numbers on the Do Not Call Registry.

First, the complaint alleges that defendant’s websites duped consumers into providing their telephone numbers by misrepresenting that they were consenting to receive calls about home mortgage financing quotes. According to the complaint, the defendant sold the lead to partners who marketed products or services completely unrelated to home mortgages or lending.Continue Reading FTC Bans Lead Generator from Participating in Robocalls in $7 Million Settlement

Last week, the Federal Communication Commission’s (FCC) issued a Notice of Apparent Liability for Forfeiture proposing a $20 million forfeiture, essentially a fine, against two telecommunications service providers for failing to properly authenticate customers’ identity before providing online access to Customer Proprietary Network Information (CPNI). CPNI includes sensitive data, such as called phone numbers, the length and time of calls, and service features. FCC rules mandate that companies handling such information use “reasonable measures” to guard access to CPNI.

Because it would be easy for third parties to impersonate customers and gain access to their CPNI, FCC rules prohibit the use of readily available biographical information or account information. “Readily available biographical information” includes “information drawn from the customer’s life history and includes such things as the customer’s social security number . . . mother’s maiden name; home address; or date of birth.” Account information is “information that is specifically connected to the customer’s service relationship with the carrier, including such things as an account number or any component thereof, the telephone number associated with the account, or the bill’s amount.” FCC rules thus requires service providers to authenticate customer identity without the use of the above information and then require a password.Continue Reading FCC Proposes $20 Million Forfeiture Against Telecommunications Service Providers for Failing to Protect User Data

Marketers and lead generators have new guidance in the form of enforcement orders on what the Federal Trade Commission (FTC) appears to consider required practice when obtaining consumer consent prior to the sale, transfer, or disclosure of consumer information that will be used in marketing.

The upshot is that the FTC provided several affirmative requirements…

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 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

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