Over twenty years ago, Congress enacted the Telephone Consumer Protection Act (TCPA) to control abusive telemarketers by restricting their access to consumers, including particular restrictions on calls to mobile phones. Over time, the Federal Communications Commission (“FCC”) and courts have interpreted the TCPA to include text messages. The agency has imposed steep fines for each call or text made in violation of the TCPA. While the law was never intended to be an avenue for class actions, plaintiffs’ lawyers saw the statutory damages provisions as a huge potential pay day and have brought numerous, high profile class actions for millions of dollars. The result? A potential nightmare for legitimate businesses and a plaintiff’s lawyer’s dream.
Bank of America, Papa John’s Pizza and Jiffy Lube have all been the subject of class action lawsuits under the TCPA, with settlements reaching upwards of $47 million. With tools such as the TCPA’s private right of action – which specifies statutory damages of $500 per call or text in violation of the law, which can be tripled if deemed “willful” by a court – the stakes are high. Ifrah Law’s telemarketing and Internet marketing law practice is aimed at avoiding and defending private lawsuits filed under the TCPA. We help clients craft policies and practices for compliance covering both opt-out mechanisms and prior express written consent for ATDS and artificial or prerecorded voice telemarketing or advertising calls to mobile and residential phones. We write and evaluate clients’ contracts for representations and warranties, and risk shifting provisions with vendors. Our experienced attorneys have been representing clients in TCPA matters before the Federal Communications Commission, state attorneys general and in civil courts since the law and similar state statutes were enacted.
Our clients represent a wide-range of businesses, from international, publicly traded corporations to start-up ventures, that regularly rely on telephone and Internet communications services to drive their revenue. We represent large call centers, as well as businesses of all sizes that need to reach their customers and contacts. We work on complex electronic commerce development initiatives, as well as routine telemarketing and Internet marketing matters that affect every business user of the Internet. We provide counsel on civil concerns that arise from doing business and marketing over the telephone and on the Internet, such as SMS text email regulations, intellectual property liability and protection, cyber-security, domain name registration, disputes and transfers, hacking and unsolicited commercial e-mail. Our advertising and telecommunications lawyers are routinely engaged with the development and operation of electronic storefronts and marketplaces and franchising on the Internet.
Widely-experienced and business-oriented, Ifrah Law’s team of Internet and mobile marketing lawyers can be your best call for avoiding and defending TCPA lawsuits and enforcement actions.
Michelle Cohen’s client, a publicly-traded enhanced messaging provider, was involved in a large-scale class action alleging violations of the TCPA’s unsolicited facsimile advertising rules. In addition to having provided the client with TCPA advice for over 15 years, Michelle represented them in enforcement matters before the FCC, including obtaining the rescission of an FCC citation, a highly unusual ruling from the FCC, finding that the client had a valid defense to the citation.
This TCPA case involved the alleged sending of 125,000 unsolicited faxes. The class was suing for triple damages of $1500 per violation – up to $180 million. Michelle and her team handled discovery, including depositions and motions. When the other parties decided to enter mediation, Michelle represented her client through the mediation, to the settlement agreement and ultimate dismissal of the case. Given the damages at stake, this case was successfully resolved for Michelle’s client, whose settlement contribution fell below the limits of their insurance policy.
On behalf of our client, a leading provider of customer management services with call centers around the world, Ifrah Law led a full-scale review of its customer communications to ensure that they comply with federal and state requirements, including those of the TCPA and the FTC’s Telemarketing Sales Rule (TSR). We addressed the many different types of calls that the company undertakes on behalf of its varied customer base – service calls, appointments, live sales calling and pre-recorded calls – to ensure that its call centers are using consistent protocols and controls in the United States, and that these protocols are in compliance with the TCPA and TSR. Our client trusted Ifrah Law with this extensive project due to our long history with managing TCPA matters – we have been involved with the TCPA since its inception in 1991 – and due to our prior work for the client, including successfully representing the client in two FCC inquiries.
We worked with the company’s Director of Privacy to develop a thorough understanding of the types of calls that the company makes for its customers, and the contractual protections that are in place and which could be revised to protect the company further. A critical aspect of this project was to educate leaders within the company that there are different TCPA requirements based on the type of call: technology used, person being called, whether the call is pre-recorded or live; mobile or business. We also wrote the call center guidelines and controls to ensure that all employees – from those being trained to the marketing team – had the same information regarding how to handle different types of customer call projects.
This large-scale process took a year to complete. Once the documentation was finalized, our client was ready to begin a company-wide training program on the guidelines, well in advance of TCPA rule changes.
Sometimes, even a company’s best efforts to comply with the law can’t protect them from liability. This was the case for our client, an advertiser, which promoted its own e-cigarette offer. An internet-based affiliate marketer who marketed our client’s products sent an unsolicited text message to a consumer. Our client recognized the potential legal problems associated with the affiliate’s actions and immediately shut down the relationship. Nonetheless, the affiliate’s action exposed our client to liability in the form of a putative class action lawsuit that was filed in U.S. District Court, Northern District of Illinois. This class action lawsuit, brought under the TCPA, had the potential to cost our client a significant amount of money.
Ifrah Law knew we needed to act quickly, before the case escalated into a class action that would be large enough to bankrupt our client. We were able to demonstrate that the third party vendor’s actions were not authorized or condoned by our client and therefore, we were able to resolve the matter for very little money, before ever answering the complaint. To avoid these types of problems in the future, we subsequently drafted strong contract and terms and conditions for our client’s third-party publishers, which would indemnify our client from future liability for its affiliate’s unauthorized actions.
Over the past several years, the Federal Communications Commission (“FCC”) took an expansive view of its rules under the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA bars certain calls, texts and faxes without prior express consent and requires disclosures and opt-out procedures. While the FCC and state attorney generals may enforce the TCPA, the law’s truth “teeth” come in the form of private lawsuits where statutory damages allow up to $1500 per call/text/fax advertisement. Organizations in every industry, including hospitality, financial services, retail, and healthcare, have settled TCPA lawsuits for millions of dollars.
Businesses viewed recent FCC rulings for the most part as pro-plaintiff, encouraging additional class action lawsuits. In July 2015, for instance, the FCC issued an “omnibus” declaratory ruling in which it expanded certain definitions and interpreted the TCPA in ways seen as empowering the plaintiffs’ bar. However, the FCC’s TCPA rules do not go unchecked, as they are subject to challenge in the courts. The D.C. Circuit recently sent a message to the FCC, ruling in Bais Yaakov of Spring Valley v. Federal Communications Commission that the agency’s 2006 rule requiring an opt-out notice on “solicited” facsimile advertisements ignored clear statutory language. The D.C Circuit’s ruling demonstrates that the court will invalidate FCC rules and interpretations when the agency exceeds statutory authority, even if the FCC may think it is making good policy. It also suggests that the D.C. Circuit may be ready to give a defiant “thumbs down” to significant parts of the FCC’s July 2015 order. A decision is expected on that appeal at any time and we anticipate that the D.C. Circuit will invalidate several aspects of that ruling. This action would have a tremendous impact on pending TCPA litigation and may curb the TCPA gravy train on which several class action firms have already ridden.
The TCPA, as amended by Congress through the Junk Fax Prevention Act, prohibits (among other things) sending an unsolicited advertisement to a fax machine. An “unsolicited advertisement,” as defined in the TCPA is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” Thus, the law allows fax advertisements transmitted with permission (“solicited faxes”). The law also contains another exception to the unsolicited fax advertisement ban where there is an established business relationship with the recipient (“EBR faxes”), provided the recipient voluntarily communicated the fax number or made it available, and a conspicuous opt-out notice meeting certain statutory requirements appears on the fax.
In 2006, the FCC ruled that “solicited” faxes – i.e. those fax advertisements for which the sender received prior consent – require the opt-out notice and associated opt-out procedures. The TCPA, in contrast, only mandates the opt-out notice for the EBR faxes. The 2006 ruling resulted in litigation against companies like Anda (a generic drug seller) that had permission to fax advertisements. Anda had valid permission from pharmacies to fax advertisements regarding time-sensitive topics such as pricing information and weekly specials. Plaintiffs nevertheless sued Anda in a $150 million class action lawsuit because Anda allegedly had not included the opt-out notice. Anda subsequently sought a ruling from the FCC clarifying that solicited faxes did not require the opt-out.
In the category of “sometimes when you ask, you get the answer you don’t want,” the FCC ruled that the opt-out notice applied to solicited and EBR faxes. However, the FCC stated it would waive application for faxes sent before April 30, 2015. The two Republican commissioners (including now Chairman Pai) vigorously dissented. Anda then appealed to the D.C. Circuit.
Late last month, the D.C. Circuit vacated the 2006 solicited fax rule and remanded it to the agency. The court focused on the TCPA’s statutory language, noting that the opt-out notice requirement only appears in the EBR fax provision. “Although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements…Nor does the Act grant the FCC authority to require opt-out notices on solicited fax advertisements.” The appeals court concluded that the case was quite simple – the FCC can only take action that Congress authorized. Congress did not authorize an opt-out notice requirement for solicited fax advertisements. Under an existing rule, senders must still allow recipients to opt-out if they no longer want to receive solicited faxes. But the FCC cannot require the opt-out notice on those solicited fax advertisements. Consequently, companies should not be liable under the TCPA for not including the opt-out notice on solicited fax advertisements.
While the FCC understandably wants to protect consumers and businesses from unsolicited calls, texts, and faxed advertisements – the agency must respect its authority and the limits to that authority. In other words, the FCC cannot choose how the TCPA “should” read. Congress made that choice.
With TCPA litigation continuing to explode, this ruling provides some comfort that the FCC will not go unchecked in its recent, broad TCPA interpretations. And, with the high stakes appeal of the 2015 Omnibus Ruling pending before the same court, there are strong signs that the D. C. Circuit will push the FCC back on its expansive interpretations of autodialer and liability for calls to reassigned numbers, among other challenged rules. Companies involved in ongoing TCPA litigation involving the challenged interpretations may want to seek stays from their courts or arbitrators pending the outcome of the next appeal.
In the past few years, many organizations such as Capital One, Bass Pro Outdoor, and the Cosmopolitan Hotel have faced class actions alleging violations of California’s call recording law. This week, California’s Attorney General demonstrated that her office, working with state prosecutors, will also vigorously enforce the law under the state’s criminal statutes. Attorney General Harris announced an $8.5 million dollar settlement with Wells Fargo Bank, N.A. over the alleged failure to provide call recording announcements to California consumers.
The complaint alleged violations of Sections 632 and 632.7 of California’s Penal Code, including the purported failure of Wells Fargo’s employees to “timely and adequately disclose the recording of communications with members of the public.” These laws form part of California’s Invasion of Privacy Act. Section 632 makes it illegal to eavesdrop (monitor) or record a “confidential communication” without the consent of all parties. The statute defines a “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.“ The law specifically excludes communications in circumstances “in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. “ Section 632.7 bars the recording of cell phone conversations, without the consent of all parties.
Wells Fargo Bank settled the case, agreeing in a stipulated judgment to the $8.5 million settlement and certain compliance requirements. Specifically, Wells Fargo must make a “clear, conspicuous, and accurate disclosure” to any consumer in California of the fact that Wells Fargo is recording the call. The settlement requires that this disclosure occur “immediately at the beginning” of the call, but allows Wells Fargo to precede the disclosure with an introductory greeting identifying the customer service representative and the entity on whose behalf the call is made (presumably, a Wells Fargo-affiliated entity). Wells Fargo also committed to a compliance program for one year and periodic internal testing of its employees’ and agents’ compliance with the call disclosure requirement. The bank agreed to appoint an officer or supervisor with specific oversight responsibility for compliance with the settlement obligations. Within a year following the stipulated judgment, Wells Fargo must provide the Attorney General with a report summarizing the testing.
Interestingly, the Attorney General previously pursued a similar action against home improvement platform Houzz Inc. for allegedly failing to notify all parties of its recording of incoming and outgoing telephone calls. In that case, Houzz agreed to appoint a Chief Privacy Officer to oversee Houzz’s compliance, a first for a California Department of Justice settlement.
As we have advised before, all organizations recording calls – whether inbound or outbound – should immediately disclose to called parties that the call is being recorded. The disclosure should occur at the outset of the call. One type of introduction could be, “This is Michelle, calling on behalf of XYZ Company. This call is being recorded and/or monitored.” Some companies may wish to announce the option of a non-recorded line, available via a key press. It is also important to time the recording to begin after the announcement, to avoid potential liability based on even a few seconds of a recorded call before an announcement is given.
A few important reminders are worth repeating:
- The announcement requirement applies to inbound and outbound calls, including requested return calls.
- Recording announcements apply to all types of calls – not just sales calls.
- Maintain proof of the announcement.
- Implement a short, written call recording policy.
- Train customer service representatives to understand the call recording policies.
- Periodically “test” call recording procedures.
- Promptly investigate any call recording complaints and take appropriate corrective action.
- Have customer service representatives sign an acknowledgment that they understand they are being monitored and/or recorded.
The recording of customer service and other calls is an important component to prevent fraud, fulfill legal requirements and augment customer service, among other reasons. Companies can implement call recording effectively, but must comply with announcement requirements and should take proactive measures, such as training and testing, to protect against civil and criminal liability and to safeguard consumer goodwill.
Most of the attention involving the Telephone Consumer Protection Act (“TCPA”) has centered on the stream of class actions around the country. It is important to remember that the Federal Communications Commission (“FCC”) and state attorney generals can, and do, enforce the TCPA. In fact, the FCC recently issued citations to Lyft, the ride-sharing service, and First National Bank (“FNB”). Under the Communications Act, before the FCC may issue monetary penalties against a company or person that does not hold an FCC license or authorization, it must first issue a citation warning the company or person.
The TCPA requires prior express written consent for telemarketing calls/texts to mobile phones utilizing an autodialer or prerecorded call and for prerecorded telemarketing calls to residential lines. FCC rules mandate that the “prior written consent” contain certain key features. Among these requirements is the disclosure informing the consenting person that “the person is not required to sign the agreement – directly or indirectly – or agree to enter into an agreement as a condition of purchasing any property, goods, or services.”
For years, the FCC focused on actual consumer complaints of having received telemarketing calls/texts without the required prior express written consent. Interestingly, here, the FCC did not allege that either Lyft or FNB sent texts/robocalls without the required consent. The FCC’s accompanying press release indicates that its Enforcement Bureau initiated the two investigations after becoming aware of “violative provisions in those companies’ service agreements.” The citations issued to Lyft and FNB, along with recent correspondence by the FCC to Paypal concerning similar issues, represent new FCC attention on terms/conditions of service in the TCPA context, particularly on “blanket take it or leave it” agreements. The FCC Enforcement Bureau Chief, Travis LeBlanc, put all companies on notice, urging “any company that unlawfully conditions its service on consent to unwanted marketing calls and texts to act swiftly to change its policies.” The FCC directed Lyft and FNB to take “immediate steps” to comply with FCC rules and the TCPA – presumably meaning that the companies should immediately revise their terms and practices.
According to the FCC, Lyft’s terms require customers to expressly consent to receive communications from Lyft to customer’s mobile numbers, including text messages, calls, and push notifications. The messages could include Lyft-provided promotions and those of third party partners. The terms advise customers that they can opt-out by following the “unsubscribe” option, and that customers are not required to consent to receive promotional messages as a condition of using the Lyft platform or the services.
However, the FCC found that contrary to Lyft’s terms of service, Lyft does not actually provide “unsubscribe options” for consumers. If a consumer independently searches and gets to Lyft’s “help center,” the only option to opt-out subsequently prevents consumers from using Lyft’s service. Thus, per the FCC, “Lyft effectively requires all consumers to agree to receive marketing text messages and calls on their mobile phones in order to use services.”
The FCC concluded that while Lyft’s terms of service stated that consumers were not required to consent as a condition to using Lyft, in actuality, consumers could not refuse consent and remain Lyft users. Thus, the FCC cited Lyft, warning that it would be liable for any advertising text messages for which it did not collect proper, prior express written consent. The agency further stated that it would continue to monitor Lyft’s practices.
In FNB’s investigation, the FCC noted that consumers wishing to use FNB’s online banking services are required to agree to receive text messages and emails for marketing purposes at consumer-provided phone numbers. FNB customers wishing to enroll in the Apply Pay service are similarly required to consent to receive marketing-related text messages and emails. The FCC objected to FNB requiring consumers to agree to receive marketing text messages in order to use the online banking and Apple Pay services, and failing to inform consumers that they have the option to refuse consent. The agency reiterated that under FCC rules, prior express written consent to receive telemarketing messages requires that, among other things, consumers receive a clear and conspicuous disclosure informing the consumer of his or her right to refuse to provide consent.
When it comes to autodialed/prerecorded telemarketing calls and texts to mobile phones and prerecorded telemarketing calls to residential lines, companies need to be diligent in ensuring they have proper, defensible prior express written consent. The FCC’s citations to Lyft and FNB make clear that organizations may not rely on blanket mandatory opt-in agreements. While it may be acceptable to seek consent in terms of service, consumers must be informed of their opt-out abilities, and must be able to access the opt-out and still use the service or make the purchase.
Companies should review their service agreements and the operational mechanisms to make sure consumers have information on opting-out. Further, any opt-out mechanisms must work as promised. A user’s opt-out should not block services/purchases. Of course, the best way to obtain consent is to seek a separate, prior express written consent in an agreement that contains all the required elements, as follows:
- Is in writing (can be electronic);
- Has the signature (can be electronic) of the person who will receive the advertisement/telemarketing calls or texts;
- Authorizes the caller to deliver advertisements or telemarketing messages via autodialed calls, texts, or robocalls;
- Includes the telephone number to which the person signing authorizes advertisements or telemarketing messages to be delivered;
- Contains a clear and conspicuous disclosure informing the person signing that:
- By executing the agreement, the person signing authorizes the caller to deliver ads or telemarketing messages via autodialed calls, texts or robocalls; and
- The person signing the agreement is not required to sign the agreement (directly or indirectly) or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
As a reminder, the FCC repeatedly takes the position that the company claiming prior express written consent will bear the burden of providing that consent.
Car dealerships are notorious for running loud, flashy ads with too-good-to-be-true offers for outrageous deals to buy or lease cars. Some dealerships downplay or even hide the seemingly endless list of qualifications on those offers which render many potential buyers ineligible for the deals, much to the irritation of misled consumers. The FTC has taken action to stop these misleading practices by continuing its effort to crack down on deceptive advertising among automobile dealerships, which began in 2014 with the FTC’s “Operation Steer Clear,” a nationwide sweep of deceptive car dealership advertising. The FTC’s efforts in this area have continued, most recently resulting in settlement with two Las Vegas auto dealerships.
Planet Hyundai and Planet Nissan of Las Vegas were the subject of FTC enforcement actions alleging that the dealers’ ads misrepresented the cost to buy or lease a car by omitting critical information or deceptively hiding it in fine print. For instance, Planet Hyundai advertised a car for sale with “$0 Down Available,” but fine print revealed that a buyer would have to trade in a car worth a minimum of $2,500 or meet other qualifications in order to take advantage of the offer. Planet Nissan’s advertisements ran purportedly reduced prices side by side with former prices which had been struck through (“Was
$12,888, Now $9,997”). However, the ads did not adequately disclose the qualifications which buyers had to meet to get those prices. Similarly, the ads touted that the cars were for “Purchase! Not a lease!,” when in fact many of the cars were leases. In both cases the FTC alleged that the prominently advertised prices are not generally available to consumers. The dealerships both entered into consent agreements in which they did not have to admit guilt or pay any fines or penalties, but were obligated to abide by relevant laws and regulations pertaining to deceptive advertising.
Further automobile enforcement efforts may be on the horizon. In a late July regulatory filing, GM disclosed that it is currently the subject of an ongoing FTC investigation regarding “certified pre-owned vehicle advertising where dealers had certified vehicles allegedly needing recall repairs.” GM and the FTC declined to comment further, so it is not immediately clear whether the individual dealers were following GM corporate policy when certifying the pre-owned cars in need of recall repairs, or specifically how the ads were allegedly deceptive.
While many of the FTC’s enforcement actions focus on lower-cost products with a large national customer base, such as dietary supplements sold over the internet, these cases serve as a reminder that the FTC’s advertising requirements apply equally to big-ticket items sold locally. Merchants and service providers of every type, whether operating online or in brick and mortar shops, must ensure that their advertisements adequately disclose all material terms and conditions in a way that is not misleading or deceptive.
The FTC’s “Do Not Call” and “robocall” rules do not apply to political survey calls. So, if Hillary Clinton sought to “voice blast” a survey about international issues, she could do so without violating the Telemarketing Sales Rule (“TSR”). (Though under FCC rules she would have an issue calling wireless numbers). However, companies may not telemarket under the guise of exempt political calls. Caribbean Cruise Lines (CCL) and several other companies working with CCL recently learned this lesson the hard way. The FTC and a dozen state attorneys general sued CCL and others for offering cruises and vacation “add ons” following purported political calls. CCL settled, agreeing to pay $500,000 of a $7.2 million dollar penalty, and to comply with multiple compliance mechanisms.
CCL and the other defendants implemented an extensive calling campaign involving 12 to 15 million calls per day for approximately ten months offering a political survey. However, the survey calls invited consumers to “press one” to receive a “free” two-day cruise to the Bahamas (port taxes would apply). A live telemarketer working on behalf of CCL then offered consumers pre-cruise hotels, excursions, and other value packages.
While political calls remain exempt under the TSR’s robocall and Do Not Call provisions, if a caller offers a good, product or service during an otherwise exempt call, an “upsell” has occurred and the call is now telemarketing. FTC rules prohibit robocalls to telemarket except with prior express consent. Thus, the FTC asserted that CCL violated the TSR’s robocall provision since the called parties had not consented to the recorded sales calls. While the calls started as political survey calls, they were actually standard telemarketing, subject to all TSR telemarketing rules. The FTC also alleged violations of the Do Not Call rules, the caller identification rules, and the “company-specific Do Not Call requirements,” among other violations.
In addition to the reminder about “upsells” or “mixed messages,” this action highlights several important TSR enforcement lessons:
The FTC and State Attorneys General work closely in telemarketing enforcement – in this action, ten state attorneys general joined the FTC’s action.
Many of the State AGs involved tend to be those most active in telemarketing litigation– Florida, Indiana, Mississippi, North Carolina, Ohio, and Washington State.
The FTC does not require a company to actually make the prohibited calls. An enforcement action will lie where a company paid or directed others to make calls in violation of the TSR.
The TSR also bars third parties from providing “substantial assistance” to others who violate the rule. Here, the FTC’s complaint charged a group of five companies and their individual owner with assisting and facilitating the illegal cruise calls, by providing robocallers with telephone numbers to use in the caller ID field, to hide the robocallers’ identities.
As part of its settlements, the FTC may impose a variety of remedies, including requiring the seller (here, CCL) to monitor its lead generators.
The FTC may also bar the seller from purchasing leads from a lead generator who is determined by the seller to obtain leads through unlawful TSR calling.
The FTC will carefully review, and proceed against companies who violate other TSR provisions, including caller ID requirements, scrubbing of the federal Do Not Call database, and the company-specific Do Not Call list.
A settlement often requires ongoing recordkeeping. Here, the FTC required CCL to create records for ten years (and retain each one for 5 years), including records of consumer complaints and documentation of all lead generators.
The FTC and state AGs may proceed against individuals as well as companies.
Many states have their own “do not call” laws, caller ID requirements and TSR-similar rules which can be used to bolster claims and penalties.
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While it should not come as a surprise that a “mixed message” call must comply with the TSR, the recent joint case against CCL and others serves as a potent reminder that the FTC and state attorneys general continue to monitor robocalling and other mass telemarketing campaigns. Further, the enforcers will use the full panoply of legal requirements and enforcement mechanisms to address telemarketing violations. The seller, the telemarketer, the lead generator, the caller ID provider, and any other party providing substantial assistance may find themselves at the receiving end of a call from the FTC if they fail to follow each of the TSR’s obligations or engage in activities that the TSR prohibits.