On January 27, 2025, there will be a significant legal change that will fundamentally affect the operations of all lead generators and those who rely on them. Many businesses are aware that the Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express written consent in order to send auto-dialed calls, pre-recorded "robocalls" or mass promotional SMS texts. The TCPA also applies to AI-generated calls. But 27 days into the new year, the FCC will implement a new requirement that prior express written consent must be obtained on a "one-to-one" basis.
Although not final as of the time this is being published, the FCC is poised to make life difficult for lead generators and the companies that rely on them. In late November, the FCC proposed a rule that would require texters and robocallers obtain prior express written consent that is specific to a single seller in order to comply with the Telephone Consumer Protection Act. The problem, according to the FCC, is the “lead generator loophole,” which currently allows lead generators to obtain consent on behalf of multiple sellers from consumers who complete a single lead form, often hyperlinked to a long list of sellers. The FCC is expected to pass the rule during in mid to late December, effective in 2024. Another possible change will be extending the National Do-Not-Call Registry to text messages instead of just phone calls.
Happy New Year! As we begin 2023, Olshan’s Advertising and Branding law groups share their list of hot topics that look to be on the horizon this year and should be of particular interest to you.
This is the second ruling of this type in two months
A concept that we explored in a recent article – the reduction of massive class-action awards based on fairness concerns – appears to be picking up judicial steam. In August 2022, a Northern District of California court reduced statutory damages in a consumer class action from the $91.4 million to just $8.3 million plus pre-judgment interest. That case is Montera v. Premier Nutrition Corp. The basis for lowering damages in the face of the requirements of the New York statute at issue was a 1919 Supreme Court ruling which authorized courts to set aside judgments based on statutory penalties that are “wholly disproportionate to the offense and obviously unreasonable.”
Dual-purpose phones can qualify as “residential” numbers to support a TCPA action
The Telephone Consumer Protection Act (“TCPA”) and its regulations prohibit calls and text messages to residential telephone subscribers who have registered their phone numbers on the national do-not-call list maintained by the federal government. While business lines are not eligible to be registered on the national do-not-call list, in practice there is nothing that bars such registration. As a result, TCPA litigation sometimes requires a determination as to whether a phone line is used for residential or business purposes. This issue arises more frequently in the current gig-economy era, because many cell phone owners use their devices for both personal and business purposes.
TCPA liability reduced to $500 for Gold’s Gym
A recent ruling out of the Central District of California will prove to be very useful for telemarketers faced with class actions under the Telephone Consumer Protection Act (“TCPA”). In Bustillos v. West Covina Corporate Fitness, Inc., United States District Judge Stanley Blumenfeld, Jr. denied an order seeking class certification where it was clear that the call in question violated the TCPA.
Law360 has published an article authored by advertising partner Scott Shaffer entitled “TCPA Future Uncertain After A Tumultuous 2020.” In the article, Mr. Shaffer discusses the legal developments that occurred during last year regarding the Telephone Consumer Protection Act (TCPA) and what to expect in 2021.
Law360 has published an article authored by advertising partner Scott Shaffer entitled “Charter TCPA Ruling May Benefit Cos. Facing Robocall Claims.” In the article, Mr. Shaffer analyzes a recent ruling, Creasy v. Charter Communications Inc., which held that a significant portion of the Telephone Consumer Protection Act (TCPA) is unenforceable for violations occurring between November 2015 and July 6, 2020.
Ruling could have broad implications on thousands of pending cases
A federal district court has ruled that the Telephone Consumer Protection Act (TCPA) is unenforceable for violations occurring between November 2015 and July 6, 2020. The trial court in Creasy v. Charter Communications, in the Eastern District of Louisiana on September 28, 2020, dismissed all asserted TCPA violations alleged to have occurred before July 6, 2020 because a portion of the TCPA was unconstitutional until the Supreme Court “fixed” it on that date.
Authored by Scott Shaffer and summer associate Christian Villatoro
Advertising, Marketing & Promotions practice chair Andrew Lustigman, Intellectual Property/Privacy partner Mary Grieco, AMP partner Scott Shaffer, and associate Morgan Spina authored four Guidance Notes on direct marketing in California recently published in the prestigious OneTrust DataGuidance (subscription required). The first, entitled “California – Emarketing,” covers both the state and federal legislation, as well as regulatory guidance from the Federal Trade Commission, concerning emarketing. In the second, “California – Telemarketing,” the authors examine the numerous pieces of state and federal legislation governing telemarketing, including the “Automatic Dialing Law” and the “Unwanted Calls Law.” The third, entitled “California – SMS/MMS Marketing,” discusses various state and federal laws on SMS/MMS, including the Telephone Consumer Protection Act, and the consent requirements that advertisers must follow when using these services. In the fourth, “California – Postal Marketing,” the authors explore various state and federal laws on postal marketing, such as California’s “Mail Solicitation Law” and the federal “Deceptive Mail Act.”
Decision Means That Issue of TCPA Standing Is Likely Headed To Supreme Court
Consumer not permitted to revoke consent given as part of a transaction
But Don’t Expect the Database Until 2020 at the Earliest
First-of-its-kind ruling broadens the reach of the TCPA
Companies that communicate with consumers through autodialed telephone calls or mass text messages should be aware that a federal appeals court has just struck down two key, pro-plaintiff Federal Communications Commission (“FCC”) interpretations of the Telephone Consumer Protection Act (“TCPA”). Although the ruling did not provide clear limits to what marketers can and cannot do, it certainly provides marketers and debt collectors with important tools that should make life more difficult for class-action plaintiffs.
Online Retailer must go to trial or settle
Hospital had compliant consent language on its consent forms
With the decline in available means to contact consumers by phone, ringless voicemail is an increasingly popular marketing technique. While the FCC petition for clarification as to whether ringless voicemail triggers TCPA obligations was withdrawn, regulation of the practice is by no means clear.
Third Circuit reverses district court and reinstates TCPA lawsuit
Issue of Ascertainability Blocks Plaintiff From Proceeding On Class Basis
The Second Circuit rules in favor of companies in the question of consumers' permission revocation.
TCPA ruling in conflict with prior case law
Andrew Lustigman will speak at American Conference Institute's 29th National Conference on July 24 in Chicago
Practice is common in Northern District of Illinois
Federal court rules that telemarketers may not use soundboard technology to avoid robocalling restrictions.
Attempts to end class action with “pick off” strategy continue to fail.
D.C. Court of Appeals vacates FCC order from 2006.
Text messages are treated like phone calls under the TCPA.
Mortgage-servicing calls will still require prior express consent.
Schools, utilities join debt collectors, health care providers and the Government itself.
The United States District Court in Western District of Pennsylvania granted summary judgment against woman with 35 cell phones.
Pennsylvania woman had 35 cell phones to attract calls!
But Spokeo does not definitively define what an injury-in-fact is.
Abercrombie & Fitch sent text message to cell phone’s prior owner
Justice Ginsburg suggests, but does not approve, a new strategy
FCC to treat text message senders differently from fax broadcasters
Yahoo facing liability to half a million text message recipients
Defendants on the hook for tens of millions of dollars
Prerecorded message must actually play during call to trigger TCPA liability
Appellate court allows man to sue for call made to his roommate’s phone
Magazine subscription program defeats Do Not Call lawsuit
Commissioner’s speech hints at more rulings to come
Eleventh Circuit allows autodialed calls to later-acquired cell phone number
“Human intervention” was key to avoiding TCPA liability
Total judgment awarded to cable subscriber is $229,500
CLIENT ALERT
Marketers who communicate with consumers on mobile devices and smart phones must stay current with the FCC's new rulings.
Telemarketer’s Do Not Call Violations Cost Business $6 Million
Eighth Circuit Rules On “Survey” Used To Promote Movie
FCC schedules a vote on the commissioner’s proposals for June 18th.
Oral arguments scheduled for October; Decision likely in 2016
Andrew Lustigman and Scott Shaffer Discuss TCPA Lawsuits and Implications on Telemarketers in new Inside Counsel article.
Court rules that a person does not have to actually send a fax in order to be considered the legal sender.
FCC clarifies a confusing TCPA provision, leaving businesses hoping for clarity on other points.
Compliance with the TCPA consent requirements remains a daunting task fraught with peril.
New law calls for penalties of up to $20,000 per violation.
Court of Appeals ruling offers broad interpretation of prior express consent.
“Middleman” responsible for subcontractor’s TCPA violation.
A current FCC review could significantly reduce TCPA litigation.
Scott Shaffer wrote an article for Bloomberg publications and was quoted in Law360 on the effects of the record-setting TCPA settlement for Capital One.
Illinois court sides with text recipient over Path.
FCC Creates Exception To TCPA’s Prior Express Consent Requirement.
Scott Shaffer was quoted in Law360's article, "Appeals Courts Further Muddy Phone-Call Privacy Laws."
In Keim v. ADF MidAtlantic, LLC, decided on July 15, 2013 in the Southern District of Florida, the defendants were allowed to moot the threat of a class action by paying the plaintiff everything he demanded on his individual claim.
In Luskin v. Seminole Comedy, Inc., decided on June 19, 2013 in the Southern District of Florida, Judge Robert Scola denied a motion to dismiss a case concerning text messages, even though the plaintiff had provided his telephone number to the text sender.
In Mais v. Gulf Coast Collection Bureau, decided on May 8, 2013, in the Southern District of Florida, the court awarded the plaintiff $7500 for fifteen calls to his cell phone made by a debt collector.
In Standard Mutual Insurance v. Ted Lay Real Estate, decided on May 23, 2013, the Illinois Supreme Court ruled that the TCPA's $500-per-call damages provision is not punitive in nature. The significance of this ruling is that, at least in Illinois, TCPA damages can be insured by marketers.
On May 9, 2013, the FCC clarified the extent to which sellers can be held liable for robo-calls and texts sent by third-party marketers on their behalf.
Commercial text messengers, take note: an Alabama-based bank avoided a federal lawsuit by putting an arbitration clause in its terms and conditions.