Category Archives: Telemarketing

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FTC Amends Telemarketing Sales Rule: Amendments Include a Ban on the Use of Certain Payment Mechanisms in Telemarketing and Clarification on Existing Provisions, Including the Business-to-Business Call Exemption

Last week, the Federal Trade Commission (FTC) released new amendments to the Telemarketing Sales Rule (TSR) that the FTC first proposed in July 2013 and that will go into effect in 2016.  As expected, the new amendments make a number of substantial changes, including a ban on the use four types of payment methods in … Continue Reading

“Show Me” State Shows No Mercy: Missouri AG Files Suit Against Charity Telemarketers

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 … Continue Reading

Do You Have to Take “Yes” for an Answer? The Supreme Court Takes Another Look at Mootness Following an Offer of Judgment in TCPA Class Litigation

The Supreme Court wrestled with a thorny question on October 14, 2015 when it heard oral argument in Campbell-Ewald Co. v. Gomez, a case that we previewed previously.  The transcript of the oral argument is available here. The facts in Campbell-Ewald are straightforward.  The plaintiff sued Campbell-Ewald, a U.S. Navy contractor hired to provide “multimedia … 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

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 … Continue Reading

“There’s a Storm Coming, Mr. Wayne” – FCC Decides to Release Robocall and Telemarketing Consumer Complaints

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 . . .”  Hathaway was forecasting the onslaught of villains who, shortly thereafter, stormed Gotham … Continue Reading

Yahoo! Says Yahoo! In Defeating Class Certification in TCPA Texting Case

In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (“TCPA”).  The litigation arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a … Continue Reading

Court Holds That Human Intervention Covers Strip Club From Liability in TCPA Autodialer Class Action

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 order.  Luna may serve as guidepost for future litigants, … Continue Reading

FCC Releases Long-Awaited TCPA Ruling

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 … Continue Reading

FCC Open Meeting May Open TCPA Class Action Litigation Floodgates . . . Further

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 … Continue Reading

Security Equipment Manufacturer Secure in Its TCPA Defense: Court Finds Company Not Vicariously Liable for Authorized Dealer’s Alleged TCPA Violations

While plaintiffs’ attorneys seek to streamline the filing of class actions under the Telephone Consumer Protection Act (“TCPA”), a recent court decision serves as a reminder that there are clear limits to a plaintiffs’ ability to recover statutory damages under a theory of vicarious liability. On May 18, 2015, the U.S. District Court for the … Continue Reading

TCPA “Pick Off” Play – Supreme Court to Consider whether a Settlement Offer to Named Plaintiff Moots Class Action

The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification.  Thus, the Supreme Court could … Continue Reading

FCC Chairman Wheeler Proposes Significant Updates to TCPA Rules

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 … Continue Reading

Supreme Court to Decide whether the TCPA’s, FCRA’s and FDCPA’s Statutory Damages Provisions Are Damaged under an Article III Standing Analysis

Statutes such as the Telephone Consumer Protection Act (“TCPA”), Fair Debt Collection Practices Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”) long have been favorites for class-action lawyers.  Plaintiffs’ attorneys leverage significant statutory damages to generate large judgments or settlements for persons who often experience nothing more than the inconvenience of receiving an unwanted call … Continue Reading

“Glory Days”: New Jersey Allows Certain Telemarketing Calls to Cell Phones

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, … Continue Reading

Some Senators Make an Unsolicited Call to the FCC

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 … Continue Reading

Compliance Trends for Online Marketers

Looking back 2014 was a year of increased government scrutiny and compliance obligations for lead generators and online marketers, and so, for 2015, advertisers will need to ramp up compliance.  Avoiding banned terms, better use of disclosures, and other web and contact center compliance enhancements – with at least some reports of 66% of website … Continue Reading

TCPA Autodialers 101: What Makes an Autodialer and What’s Next from 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 … Continue Reading

Facing the Fax: Always Use Opt-Out Notices for Fax Advertisements (and Seek A Retroactive Waiver, If You Haven’t)

Even in 2014, fax marketing by associations, businesses, and other individuals shows no sign of slowing down.  We have previously noted the significant number of class action lawsuits involving fax advertisements under the Junk Fax Prevention Act (“JFPA”). Now the Federal Communications Commission (“FCC”) is drawing more attention to this less common form of advertising.  … Continue Reading

TSR Under Review: What Telemarketers Should Know about FTC’s Request for Public Comments

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 … Continue Reading

Striking Stats About Internet Marketing and Online Lead Generation

Online advertisers and marketers, including lead generators, and their service providers, have long had to contend with scrutiny from the FTC, state Attorneys General, competitors, and customers.  And, since 2012, advertisers of consumer financial products and services have had to contend with the CFPB.  Regardless of what you are promoting, bedrock advertising law says an … Continue Reading

FTC Stays the Course on Prenotification Negative Option Plans

On July 25, the FTC announced that it would retain its Prenotification Negative Option Rule (“Rule”) without modification after completing a regulatory review of the Rule.  Numerous state and local law enforcement agencies had submitted comments urging the FTC to expand the scope of the Rule.  The FTC declined to do so, and instead adopted … Continue Reading

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

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 … Continue Reading

Caller Beware: FCC’s Record “Do-Not-Call” Fine Highlights Liability Under TCPA

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 … Continue Reading
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