December 6, 2019
This week, Governor Andrew Cuomo signed a bill enacting the Nuisance Call Act, a telemarketing law aimed at curbing the receipt of unwanted commercial telephone calls by New York residents. The law is intended to build upon the State’s Do-Not-Call Law, which went into effect in 2001.
How does the new telemarketing law attempt to curb abusive telemarketing practices?
On November 1, 2019, Capital One Services, LLC (“Capital One”), filed a Petition for a Declaratory Ruling with the Federal Communications Commission (“FCC”) to determine whether it may send, without violating the Telephone Consumer Privacy Act (“TCPA”), one-time text messages to clarify the scope of ambiguous opt-out requests that it periodically receives from its customers. Specifically, Capital One sought guidance on situations that may arise when customers use its “Eno” text messaging system. Through Eno, customers can receive informational text messages on a variety of topics. Due to the variety of information that may be conveyed via Eno, the scope of a customer’s opt-out request may be unclear – i.e., did the customer wish to stop receiving all text messages or just a specific type of text message? According to the petition, “[i]t is necessary to effectuate consumer intent by allowing Capital One’s customers to have informed control over the scope of their opt-out.” Although Capital One is confident that the TCPA permits it to respond to ambiguous opt-out requests from customers, it noted that the technical nature of TCPA law may still result in its being named as a defendant in unnecessary lawsuits. It, therefore, decided to seek FCC guidance.
How does Capital One use text messages?
[Read More]November 6, 2019
Since passage of the Telephone Consumer Protection Act (“TCPA”), courts and businesses have grappled with whether – and to what extent – TCPA liability extends to corporate officers. While the corporate veil often protects corporate officers from personal liability in other contexts, the wording of the TCPA (“It shall be unlawful for any person within the United States . . . to make any call . . . using any automatic telephone dialing system . . .”) has been interpreted such that corporate officers can, in certain limited circumstances, be subject to TCPA liability. However, several recent court decisions have suggested that courts are beginning to re-examine the merits of subjecting corporate officers to personal liability under the TCPA.
What kind of conduct exposes corporate officers to TCPA liability?
October 11, 2019
The United States Supreme Court (“SCOTUS” or the “Court”) recently began its new term and immediately issued an order involving the Telephone Consumer Protection Act (“TCPA”). Fast on the heels of a recent decision at the end of the last term in which the Court was presented with a dispute over the TCPA’s application to certain classes of unsolicited faxes, SCOTUS opining on the law once more is a matter of interest to all industry observers. Unfortunately, however, the Court again failed to provide clear guidance for future TCPA fax case proceedings in lower courts of law.
How did SCOTUS resolve the TCPA fax issue?
October 3, 2019
On September 30, 2019, a federal district court for the District of New Jersey (the “Court”) denied a motion to dismiss based, in part, on the definition of automatic telephone dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”). In Rivero v. D’Jais, LLC, the plaintiff alleged that defendant D’Jais, LLC (“D’Jais”), a Jersey shore nightclub, used an ATDS to send him numerous text message advertisements without his consent. D’Jais moved to dismiss the amended complaint, arguing that the plaintiff failed to plead that the subject text messages were sent using an ATDS. After a thorough review of Third Circuit precedent, the Court denied the motion to dismiss the TCPA text message lawsuit.
What constitutes an ATDS under the TCPA?
September 30, 2019
On September 25, 2019, the Federal Trade Commission (“FTC” or “Commission”) published an Advance Notice of Proposed Rulemaking calling for public comment on the need to amend the current “Rule Concerning the Use of Prenotification Negative Option Plans” (the “Negative Option Rule” or “Rule”). Negative option marketing, where a consumer’s silence constitutes consent to an offer, can come in several different forms. According to the FTC, the current Rule fails to address: 1) all forms of negative option marketing; 2) across all types of media.
How Would the FTC Amend the Current Rule?[Read More]
September 27, 2019
Apple Inc. has released a new operating system for its mobile devices that is likely to have a significant effect on the telemarketing industry. Among the features included in the new operating system, iOS 13, is one that is intended to provide users with the ability to effectively eliminate their receipt of unwanted telemarketing calls and other robocalls.
No more telemarketing calls?
September 24, 2019
On September 13, 2019, Florida-based company Yodel Technologies LLC (“Yodel”) petitioned the Federal Communications Commission (“FCC”) for a declaratory ruling concerning the use of soundboard technology. Specifically, the petition addresses the question of whether soundboard technology should be considered a pre-recorded voice message, or “robocall,” within the meaning of the Telephone Consumer Protection Act (“TCPA”). This petition comes on the heels of a similar petition submitted in February 2019, by NorthStar Alarm Services, LLC in which they sought a declaratory ruling regarding whether soundboard technology violates the TCPA. As of this date, that petition still remains pending.
Is use of soundboard technology prohibited by the TCPA? [Read More]