We may only be three weeks into 2016, but the Telephone Consumer Protection Act (“TCPA”) has already received a considerable amount of attention this year.

Yesterday, the U.S. Supreme Court determined in Campbell-Ewald Co. v. Gomez, that a defendant could not cut off a TCPA class action lawsuit by making an offer of settlement to the lead plaintiff in an amount that would fully satisfy his claims.  Specifically, a defendant company that sent a single SMS text message to the lead class action plaintiff made an offer of judgment for $1503 (i.e., the statutory value of a single TCPA violation, trebled for willful misconduct).  The lead plaintiff rejected this offer. Continue Reading Ringing Off The Hook: TCPA Issues Still At Forefront As Calendar Turns To 2016

Written by Paul Abbott

Companies that require customers to agree to receive autodialed marketing calls and text messages as a condition for using the companies’ services have been put on notice that they may be in violation of the Telephone Consumer Protection Act (“TCPA”).   Last week, the Federal Communications Commission issued a Citation and Order to both the ride-sharing company Lyft and First National Bank, alleging that the companies’ terms and conditions of service violate the TCPA.

Under the TCPA and FCC rules, anyone wishing to make autodialed phone calls or text messages to consumers’ wireless phones or prerecorded calls to home phones for marketing purposes must first obtain the customer’s written consent. Those who make calls in violation of the TCPA and FCC rules face stiff financial forfeitures of up to $16,000 for each violation of the TCPA rules, and up to $112,500 for any singe act or failure to act in conformity with FCC rules. Continue Reading Lyft Gets Cited by FCC for Robo-Texting

Written by Jordan Cohen

As we discussed in last week’s Privacy Monday, the Federal Communications Commission (FCC) recently released its Declaratory Ruling and Order clarifying and expanding the reach of the Telephone Consumer Protection Act (TCPA).  While the ruling is broad in its subject matter, part of the ruling specifically addresses so-called “robocalls” made by health care providers.

The portions of the ruling related to health care were the result of a petition filed by the American Association of Healthcare Administrative Management (AAHAM). AAHAM’s petition primarily related to the TCPA’s consent requirements. FCC rules generally require that callers obtain the prior express consent of the called party before calls or text messages are made to wireless phones using autodialing equipment or an artificial or prerecorded voice. Continue Reading FCC Ruling Addresses Robocalls by Health Care Providers

Written by Ernie Cooper

Businesses that engage in fax advertising and solicitation should pay careful attention to the recent ruling by the Federal Communications Commission clarifying that even fax advertisements sent with the prior express invitation or permission of the recipient must include an opt-out notice that: (1) is clear and conspicuous and on the first page of the ad; (2) states that the recipient may request the sender not send any future ads and that failure to comply with an opt-out request within 30 days is unlawful; and (3) contains a telephone number and fax number for the recipient to transmit an opt-out request.

Because there had been some confusion about whether the opt-out requirement applied to solicited fax advertisements, the FCC granted a retroactive waiver of the requirement to 24 companies that had asked for the clarification, allowing them until April 30, 2015, to come into full compliance with the opt-out requirement.

The FCC also said that it would entertain similar requests from other parties for retroactive waiver of the rule, but warned that it expected those parties “to make every effort to file such requests prior to April 30, 2015.”  It said that such requests would be adjudicated on a case-by-case basis.  The FCC recently asked for public comment on retroactive waiver petitions filed in November by eight additional fax advertisers.

There has been no confusion about the requirement to include an opt-out notice in unsolicited fax advertisements sent to persons with whom the sender has an existing business relationship or “EBR,” and the FCC window for waiver requests does not apply to any violation of those rules.  Sending an unsolicited fax advertisement to a person with no EBR remains prohibited.

Fax advertising and telemarketing calling campaigns have increasingly been the subject of class action suits filed under the Telephone Consumer Protection Act (TCPA), underscoring the importance of understanding and applying the rules – even where apparent permission to send the fax or make the call has been obtained.

Written by Ernie Cooper 

In a ruling issued late last week, the Ninth Circuit held that a marketing consultant that hired a firm to send text messages for a third party could also be held vicariously liable for violations of the Telephone Consumer Protection Act (TCPA).  The marketing consultant acknowledged that Federal Communications Commission orders have established that a telemarketer can be held liable under the TCPA for calls made by agents they have hired to make the calls, but argued that vicarious liability should not extend to a marketing consultant that serves a middle-man role.  The Ninth Circuit disagreed, holding that it should apply “ordinary tort-related vicarious liability rules,” and saying that “[i]t makes little sense to hold the merchant vicariously liable for a campaign he entrusts to an advertising professional, unless that professional is equally accountable for any resulting TCPA violation.”

The Campbell-Ewald Company had been hired by the United States Navy to distribute text messages to targeted individuals as part of a multimedia recruiting campaign.  The plaintiff alleged that one of the text messages had been sent to him despite the fact that he had not consented to receive the message and despite the Navy’s testimony that messages were intended to be sent to only persons who had consented to receive them.  The TCPA prohibits use of autodialing equipment to send calls to wireless phones without the prior express consent of the called party.  Both the FCC and the courts have held that text messages are the equivalent of calls for purposes of the TCPA.

The court also rejected Campbell-Ewald’s argument that it should be granted some form of immunity because the calls were made on behalf of the Navy.

The Ninth Circuit’s ruling overturns a summary judgment order issued by the district court in favor of Campbell-Ewald and remanded the case to the district court for further proceedings.

Gomez v. Campbell-Ewald Co., No. 13-55486 (9th Cir. Sept. 19, 2014).

Written by Ernest C. Cooper

Should retailers be required to obtain written consent before sending a consumer a text message with information or a coupon that was specifically requested?  The Retail Industry Leaders Association (RILA) thinks not, and has filed a petition asking the Federal Communications Commission to clarify that sending a one-time text message in response to a consumer request does not violate FCC telemarketing rules requiring prior written consent for marketing text messages.  The FCC has issued a public notice asking for comments on the petition, which must be submitted by February 21, 2014, with reply comments due by March 10, 2014.

FCC telemarketing rules that went into effect on October 16, 2013, require prior written consent of the called party to send marketing or advertising messages, including text messages.  The RILA petition argues that those rules do not sensibly apply to an “on-demand” text service that provides one-time text message replies to consumer requests for offers.  For example, a consumer might respond to a retailer’s advertising display by texting “discount” to the retailer, which then sends a reply text message to the consumer with a coupon or other discount information.  RILA is concerned that because the reply message is arguably marketing or advertising and is sent without the consumer’s written consent, some persons might charge the retailer is violating the FCC’s telemarketing rules, despite the fact that the reply message was specifically requested by the consumer.

To ensure retailers can send these types of reply messages without risking lawsuits for violation of FCC rules, RILA asks the FCC to clarify that its telemarketing rules do not apply to an “on-demand” text service sending reply messages because the text communications are: (1) initiated by the consumer; (2) one-time messages sent in response to a specific consumer request; and (3) include only specific information requested by the consumer.

The RILA petition is available here.

The FCC’s public notice can be found here.