TCPA Tracker-November 2015



To read prior issues of TCPA Tracker, please click here.

Don’t Call Me, Maybe – Missouri AG Alleges Charter Communications Violated TCPA, TSR, and State Laws under Third-Party Liability Theory

On October 19, 2015, Missouri Attorney General Chris Koster filed a lawsuit against Charter Communications, Inc., alleging that the cable, internet, and telephone service provider’s third party telemarketers made thousands of telemarketing calls to consumers who had placed their numbers on the federal and Missouri Do Not Call (DNC) lists, or requested not to receive telemarketing calls from Charter. According to the Attorney General’s press release, the Office received 350 complaints from Charter subscribers and non-subscribers about telemarketing calls – which some had been receiving up to three times per day. 

According to the complaint, Charter had entered into contracts with third-party telemarketers to place telemarketing calls on its behalf to numbers on Charter-provided lists. These third parties allegedly used autodialers, identified themselves as Charter, and received a commission based on sales to phone numbers on the lists provided by Charter. The complaint, which was filed in the U.S. District Court for the Eastern District of Missouri, alleges that these third-party telemarketers made calls to thousands of consumers whose phone numbers were on applicable Do Not Call lists and did not lawfully honor consumers’ requests to be added to DNC lists, and that such calls were made without an applicable Established Business Relationship exemption or consent to be called. The complaint states that Charter is liable for these third parties’ calls, which allegedly violate the Telephone Consumer Protection Act, Telemarketing Sales Rule, and Missouri Merchandising Practices Act’s No Call Law” and Telemarketing Law.”

While we have seen an influx of consumer class action lawsuits alleging TCPA violations in recent years, state Attorneys General have the authority to investigate and seek civil penalties for violations of both federal and state telemarketing laws. Attorney General Koster is seeking, in addition to permanent injunctive relief, civil penalties of at least $500 for each violation of the TCPA, up to $16,000 for each violation of the TSR, and up to $5,000 for each violation of the Missouri Merchandising Practices Act.

Latest Budget Deal Includes TCPA Exception for Government Debt Collection Calls
On November 2, 2015, President Obama signed into law the Bipartisan Budget Agreement of 2015.  While much of the attention surrounding the bill focused on the decision to raise the debt ceiling, the legislation also quietly included a Debt Collection Improvements” provision.  This section amends the TCPA so that an autodialed call to a cell phone or residential telephone line is permitted even in the absence of the prior express consent of the called party as long as the call is made for the purpose of collecting a debt owed to or guaranteed by the United States.”  The Act also calls on the FCC to establish regulations to implement the amendment within nine months, and specifies that the Commission has the authority to restrict or limit the number and duration of calls made to a telephone number assigned to a cellular telephone service to collect a debt owed to or guaranteed by the United States.”  Within days of the President signing the bill, Senator Ed Markey (D-MA), along with ten other bipartisan cosponsors, introduced legislation to reverse the TCPA exemption for government debt collection calls, arguing that the amendment will make it easier for debt collectors to harass anyone who holds government-backed debt, including students and veterans.  The bill (S.2235) is currently pending before the Senate Committee on Commerce, Science and Transportation.
FCC Begins Weekly Release of Robocall Complaint Data
On October 21, 2015, the FCC announced that it would begin releasing robocall and telemarketing consumer complaint data on a weekly basis.  The Commission stated that it received more than 215,000 complaints about unwanted robocalls and telemarketing calls in 2014, and that it made the decision to release certain data about these complaints in order to help developers build and improve do not disturb’ technologies that allow consumers to block or filter unwanted calls and texts.”  The information that will be publicly available includes the date and time of the alleged violation, the number that appeared on the consumer’s caller ID, the telephone number provided to the consumer by the advertiser during the call, and the type of call or message (i.e. abandoned, live voice, prerecorded voice, text message).  The FTC also releases similar data from its own consumer complaint database.

  FCC Petitions Tracker
With the rise in TCPA litigation, numerous parties have sought clarification of the rules. Kelley Drye’s Communications group has compiled this comprehensive summary of the pending petitions.
Number of Petitions Pending New Petitions Filed Upcoming Comments Decisions Released
19 (+ 10 seeking a retroactive waiver of the opt-out requirement for fax ads) Joseph T. Ryerson & Son, Inc. (seeking a declaratory ruling that the TCPA does not apply to digital fax transmissions) Broadnet Teleservices, LLC (replies due 11/13/15)

Petitions by the NAB , F-19 Holdings, LLC and Kale Realty, LLC seeking retroactive waivers of the prior express written consent requirement for autodialed or pre-recorded calls (replies due 11/9/15)
Click here to see the full FCC Petition Tracker.