Category - "Telemarketing"

Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing

The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.

Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading “Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing”

FTC’s Decision Treating Soundboard Calls as Robocalls Remains Undisturbed. What Comes Next?

A two-year legal battle in the federal courts has come to an end, the Supreme Court announced last week. On April 15, 2019, it declined to review the Soundboard Association’s challenge to the legality of a Federal Trade Commission decision in 2016 that outbound telemarketing calls made through soundboard technology are robocalls.

Soundboard technology allows call center agents to interact and converse with consumers on a real-time basis using a combination of audio clips and the agent’s own voice. It may involve reading a pre-determined script, responding to queries and interjections from consumers by playing a pre-recorded audio clip, using “response keys” to generate common interactive conversational responses (such as “I understand,” “exactly,” “yeah,” or a recorded statement that the agent is a real person using audio clips to communicate with the consumer), or giving the consumer the option to speak with a live operator’s own voice for the duration of the call. It has been widely used by call centers in the last two decades. Continue reading “FTC’s Decision Treating Soundboard Calls as Robocalls Remains Undisturbed. What Comes Next?”

Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing

The Southern District of New York recently granted a motion to dismiss in a putative TCPA class action because plaintiff failed to plausibly allege that the texts at issue constituted telemarketing or contained advertising material, thus requiring plaintiff’s prior express written consent. The decision highlights the importance of pleading the specific content of the communication at issue in a TCPA case, which directly impacts the type of consent that is required. Continue reading “Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing”

Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory

The Ninth Circuit recently affirmed summary judgment for five defendants—three payday lenders and two lead-generation vendors—in a certified class action where it was undisputed that the text message at issue violated the TCPA.  See Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010 (9th Cir. 2018).  Rejecting Plaintiff’s ratification theory, the court held that the defendants were not vicariously liable for the actions of a non-party “publisher,” AC Referral—the entity that initiated the text.  The Ninth Circuit’s opinion provides useful guidance as to scope of TCPA liability for all players involved in an SMS campaign, particularly those that do not actually press “send.” Continue reading “Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory”

District Courts Debate Whether Providing a Phone Number Establishes Consent

Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”

Continue reading “District Courts Debate Whether Providing a Phone Number Establishes Consent”

District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising

As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading “District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising”

Independent Contractor vs. Agent under the TCPA

The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.

Continue reading “Independent Contractor vs. Agent under the TCPA”

District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing

As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading “District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing”

Are Insurance Renewal Notifications Telemarketing? Maybe.

As discussed here, the Central District of California recently granted summary judgment in favor of an insurance company after finding that a prerecorded call to the insured’s mobile phone, which reminded her to review her health plan options for the following year, was not telemarketing and therefore did not require “prior express written consent.” See Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. SACV 16-00108-CJC-KES (C.D. Cal. Jan. 13, 2017).

But just a few weeks ago, a different judge in the Central District reached the opposite conclusion in a similar case, and denied the defendant’s motion to dismiss. See Flores v. Access Ins. Co., No. 2:15-cv-02883-CAS-AGR (C.D. Cal. Mar. 13, 2017) (available here). These two decisions illustrate how courts continue to grapple with the distinction between “telemarketing” and “informational” calls. Continue reading “Are Insurance Renewal Notifications Telemarketing? Maybe.”

Central District of California Holds That Insurance Renewal Notifications Are Not Telemarketing Under the TCPA

The Central District of California recently granted summary judgment to a health insurer after finding that a pre-recorded message delivered to the insured’s cell phone reminding her to review her health plan options for the coming year was not telemarketing. Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. 16cv108 (C.D. Cal. Jan. 13, 2017), ECF No. 73.

In Smith, the plaintiff completed an application for health insurance through California’s Affordable Care Act Healthcare Marketplace, Covered California. As part of that application process, Plaintiff provided her cell phone number as “the best number at which to contact her.” As required by law, the insurance was set to automatically renew for 2016, and in 2015, Blue Shield attempted to contact Smith by sending written materials to her mailing address (as also required by law) to inform her of the changes to her plan and provide her with alternatives. Plaintiff’s materials, however, were returned to Blue Shield as undeliverable. As with other insureds whose materials were returned, Blue Shield followed up with a pre-recorded message stating in relevant part: “This is an important message from Blue Shield of California. It’s time to review your 2016 health plan options and see what’s new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com. If you have not received your information packet in the mail, or if you have any questions, please call the number on the back of your member ID card.” Plaintiff received the call on December 3, 2015; on December 6, 2015, she completed an application for a different insurance plan for the 2016 year. Continue reading “Central District of California Holds That Insurance Renewal Notifications Are Not Telemarketing Under the TCPA”