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On June 20, the U.S. District Court for the Northern District of Illinois granted a telecommunication company’s motion to compel arbitration and dismissed a putative class action alleging the company violated the Telephone Consumer Protection Act (TCPA). Specifically, the plaintiff brought an action against the telecommunications company for allegedly making unauthorized phone calls using prerecorded messages in an effort to reach account holders to collect unpaid bills. The company moved to compel arbitration because the plaintiff had entered into a “subscriber agreement,” which was provided to him via mail after he agreed to self-install his services, and the agreement requires arbitration of disputes. The court agreed with the company, holding that the arbitration provision of the subscriber agreement covered the dispute because the “Federal Arbitration Act does not require agreements to be signed, only written” and the plaintiff installed and used the telecommunication services, which constituted acceptance of the subscriber agreement.
On June 25, the Massachusetts Supreme Judicial Court held that a national retailer’s use of an automated dialing service to contact debtors without leaving voicemail messages constitutes a violation of the state’s debt collection regulation. According to the opinion, after a consumer defaulted on the retailer’s branded debit card, the retailer began contacting the consumer more than twice a week using an automated dialing service. The retailer did not leave voice messages. In July 2015, the consumer filed suit against the retailer for violating the state debt collection regulation for calling more than two times in a seven-day period in order to collect a debt. The lower court granted summary judgment in favor of the retailer, holding that the automated phone calls were not “communications” under the state regulations and there was no indication the consumer answered and heard the prerecorded message more than twice a week. In reversing the lower court’s decision, the state supreme court rejected the retailer’s argument that it did not “initiate” communications because it was using an automated dialing system and also rejected the argument that the calls did not constitute “communications” because they did not convey any information if the consumer did not answer. The court unanimously held that the retailer’s arguments are contrary to the purpose of the regulation and that the “regulation applies to any attempted telephonic communication. . .in an effort to collect a debt, so long as, as here, the creditor is able to reach the debtor or to leave a voicemail message for the debtor.”
On June 6, the U.S. District Court for the Southern District of Florida granted the FTC’s request for preliminary injunction against an individual defendant and the company he owns and manages (stipulating defendants) for allegedly violating the FTC Act by making robocalls to small business owners claiming they represented a global search engine and could guarantee top search result placements. The stipulating defendants are part of a larger group of Florida-based companies, affiliates, and representatives (defendants) identified in the FTC’s 2018 complaint. According to the FTC’s May 23 press release, the defendants—who allegedly have no relationship with the search engine—threatened to remove companies from the search engine’s results or label them as “permanently closed” unless they accepted the robocall and paid a fee to participate in the defendants’ program. The complaint also claimed that the defendants—who lost the ability to accept payments by credit card after their merchant account was closed due to high chargeback rates—allegedly “took money, usually $100, from at least 250 of their prior or existing customers’ checking accounts without those customers’ advance knowledge, consent, or authorization, and with no apparent reason or justification.”
In granting the preliminary injunction, the court found that there exists “good cause” to believe the FTC’s allegations against the stipulating defendants, and that the FTC is “likely to prevail on the merits of this action.” The injunction, among other things, blocks the stipulating defendants from continuing with their business, freezes their assets and records, and orders the appointment of a receiver to take control over those assets. A temporary restraining order was also issued against all defendants on May 8.
FTC files complaint against two operations allegedly responsible for making billions of illegal robocalls
On June 5, the FTC announced charges filed against two individuals and their related operations (defendants) for allegedly facilitating billions of robocalls to consumers across the country through a telephone dialing platform in violation of the FTC Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telemarketing Sales Rule. According to the complaint filed in the U.S. District Court for the Central District of California, the alleged misconduct—dating back to 2001—centered around the principal and owner of a group of companies that operated and developed a computer-based telephone dialing platform, and a second individual defendant and his group of call center businesses that paid for the development and use of software designed to make autodial telephone calls and deliver prerecorded messages. The FTC alleged that for many years the two individual defendants jointly owned and operated businesses that resold access to a “bundle of services”—referred to as a “one-stop-shop for illegal telemarketers”—that provided, among other things, (i) servers to host the autodialing software, as well as the physical space housing the servers; and (ii) the ability to make calls using “spoofed” caller ID numbers, which made it look as if the calls came from a consumer’s local area code. According to the FTC, this “bundle of services” became so widely used within the industry that it has been named in at least eight other FTC lawsuits centered on the facilitation of unlawful calls. Among other things, the charges against the defendants include assisting with illegal robocalls, calling with prerecorded messages, calling numbers on the National Do Not Call Registry, calling with spoofed caller IDs, and abandoning calls. The FTC seeks civil monetary penalties, a permanent injunction against the defendants to prevent future violations, and reimbursement of costs for bringing the action.
Court denies plaintiff’s motion for summary judgment in TCPA action, questions accuracy of report citing number of robocalls
On May 21, the U.S. District Court for the Southern District of California denied a plaintiff’s motion for summary judgment against a solar company that she claimed made multiple unwanted robocalls to her cell phone, holding that questions remained about the accuracy of a report identifying the number of illegal calls the company allegedly placed. The plaintiff filed a putative class action complaint asserting that the company, in order to market products and services, violated the Telephone Consumer Protection Act (TCPA) when it used a “predictive dialer” to contact cell phone numbers the company bought from third parties. The plaintiff further claimed that none of the alleged call recipients had provided prior express consent to receive the calls, and that an expert retained by the plaintiff found that the company had made 897,534 calls to 220,007 unique cell phones. After the class was certified, the plaintiff moved for summary judgment, requesting that class members be awarded damages available under the TCPA of $1,500, or $500 per call.
While the court determined that there is no argument as to the plaintiff’s TCPA claim concerning whether the company made telemarketing calls (and failed to receive prior express consent), a dispute remained over whether the plaintiff had “carried its burden of demonstrating” that the high number of calls cited in the report were actually made. First, the court stated that, because the company “stipulated that the [p]laintiff’s expert in fact reached a certain conclusion, it does not follow that [the company] stipulated to the accuracy of the conclusion.” Second, the court held that, since a reasonable jury could find the report’s “conclusions are flawed for any number of reasons,” a fact issue as to the report’s accuracy remained. A settlement conference has been set for June 6.
On April 27, the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to a November 2016 FTC staff letter, which announced the FTC would treat calls using soundboard technology as robocalls. According to the D.C. Circuit opinion, the FTC’s 2016 staff letter rescinded a 2009 staff letter, which reached the conclusion that soundboard technology was not subject to robocall regulation. The Soundboard Association filed suit, seeking to enjoin the rescission of the 2009 letter, arguing that the 2016 staff letter violated the Administrative Procedures Act (APA) by issuing a legislative rule without notice and comment and that it unconstitutionally restricted speech in violation of the First Amendment. The lower court granted summary judgment for the FTC holding that the 2016 letter did not violate the First Amendment and that the letter was an interpretive rule and therefore not subject to the notice and comment requirements of the APA. Upon appeal, the D.C. Circuit vacated the lower court’s decision and dismissed the action in its entirety, holding that the 2016 letter was not a “final agency action” and therefore, the plaintiffs failed to state a cause of action under the APA.
On February 9, a federal judge for the U.S. District Court for the District of Montana denied a plaintiff’s motion for summary judgment, which sought to overturn the State of Montana’s statutory restrictions on robocalls. Among other things, the plaintiff—a Michigan-based political consulting firm that relies on automated calls to gather data—claimed the 1991 Montana statute violated its right to free speech under the First and Fourteenth Amendments of the United States Constitution by prohibiting automated sales and political campaign calls. However, the court ruled that the Montana statute is sufficiently narrowly tailored and is intended to preserve and protect residents’ “control over [their] property and personal choices regarding receipt of communications.” Exemptions to the ban, the court explained, can occur “if the permission of the called party is obtained by a live operator before the recorded message is delivered.” The narrow tailoring leaves “ample alternative (including all of the more traditional) channels of communication for the protected political speech.”
On January 31, the FTC submitted a comment letter in response to the FCC’s request for input on its November adoption of rules allowing phone companies to proactively block illegal robocalls originating from certain types of phone numbers. (See previous InfoBytes coverage here.) Calling the development of a call-blocking, call-filtering solution to protect consumers from illegal and unwanted calls long overdue, the FTC offered support for efforts to encourage providers who block calls to “identify and quickly rectify any erroneous blocking.” However, FTC staff claimed that, based on the current record, it is unclear whether there exists “a need to require a formal challenge mechanism for errors resulting from provider-based call blocking authorized by this Report and Order.” The FTC noted that a formal challenge process is not necessary because, among other things, the FCC already cautions providers about wrongfully blocking unallocated or unassigned numbers and “warns providers that erroneous blocking may lead to liability for violating call completion rules.” Additionally, the FTC agreed with concerns raised by a telecom association that “white lists,” which contain numbers that should not be blocked, pose “substantial security risks” if the lists “fall into the hands of even a single robocaller” because they might serve as the “‘de facto master key’ that would provide robocallers with the ability to override all of the efforts painstakingly developed to thwart them.”
On November 16, the FCC approved new rules allowing phone companies to proactively block illegal robocalls originating from certain types of phone numbers.
Pursuant to the report and order released on November 17, providers may block calls that: (i) are made from telephone numbers that are not designed to make outgoing calls; (ii) originate from telephone numbers listed on a subscriber’s “do not originate” list; or (iii) originate from telephone numbers with non-existent area codes, no provider assignment, or that are not currently in use. The FCC is seeking public comments from phone service providers by January 23, 2018, to minimize the possibility of blocking “lawful calls” by establishing procedures for identifying and fixing erroneous blocks.