Telemarketing and Call Center Operations

Last Friday, the U.S. Court of Appeals for the Ninth Circuit held that a marketing consultant for the United States Navy – the Campbell-Ewald Company – could be held liable for a third-party marketer’s violations of the Telephone Consumer Protection Act (“TCPA”) arising out of the transmittal of unsolicited text messages.

The Navy hired Campbell-Ewald to develop and execute a multimedia recruiting campaign and the parties agreed that, as part of the marketing campaign, Campbell-Ewald would send text messages to cellular users that had consented to receive the recruitment solicitation.  Campbell-Ewald outsourced the text message dialing to a company called Mindmatics which was responsible both for generating the list of phone numbers to be dialed and for physically transmitting the text messages.  In the suit, the plaintiff claimed that he did not consent to receipt of the message and alleged that Campbell-Ewald violated the TCPA.  The plaintiff did not name the Navy or Mindmatics as a defendant.

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Last week, a court preliminarily approved the largest class action settlement alleging violations of the Telephone Consumer Protection Act (TCPA).  Capitol One, along with three debt collection agencies, agreed to pay more than $75 million to settle a consolidated class action lawsuit alleging that the companies used an automatic telephone dialing system (ATDS) and/or artificial

Several weeks ago, Connecticut enacted legislation making it illegal for telemarketers to send unwanted text messages to consumers, modernizing the State law and bringing it into accord with the federal Telephone Consumer Protection Act (“TCPA”).  Among other things, Connecticut’s “mini-TCPA” bans unsolicited commercial calls, and text and media messages to be sent to an individual’s

New rules issued by the Federal Communications Commission ("FCC") last year are about to take effect. These rules will make it more difficult for businesses to make telemarketing calls and texts to wireless customers and to certain residential customers by requiring express written consent (1) to make telemarketing calls using an autodialer or prerecorded message

On May 21, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking (“NPRM”) regarding proposed amendments to the Telemarketing Sales Rule (“TSR”). Notably, the proposed changes would: (1) expressly state that the seller or telemarketer bears the burden of demonstrating an existing business relationship with a customer whose number is listed on the Do Not Call Registry, or that it has obtained an express written agreement from such customer; and (2) clarify that the exemption for calls to businesses extends only to calls inducing sale or contribution from the business, and not to calls inducing sales or contributions from individuals employed by the business. The Commission believes that these proposed revisions are consistent with current enforcement policy.

In addition, the FTC proposes to amend the Rule to explicitly state the following requirements, which it also believes are consistent with current enforcement policy. These proposed amendments would:

  1. Modify the prohibition against sellers sharing the cost of Do Not Call Registry fees to emphasize that the prohibition is absolute;
  2. Illustrate the types of impermissible burdens on consumers that deny or interfere with their right to be placed on a seller’s or telemarketer’s entity-specific do-not-call list (such as requiring the person to listen to a sales pitch before accepting the Do Not Call request or assessing a charge or fee for honoring the request); and
  3. Clarify that the recording memorializing the express verifiable authorization required before a seller or telemarketer bills a customer or donor (unless payment is made by debit or credit card) must include an accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which the payment authorization is sought.

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A few days ago, a Kansas state court entered a default judgment against Bullseye Target Marketing, a Missouri telemarketing company that solicited roofing business in Kansas, in an action brought by the Kansas Attorney General alleging violations of the Kansas No-Call Act (the state analogue to the federal Telemarketing Sales Rule). The court ordered the

On May 9, 2013, the Federal Communications Commission ruled that sellers may be held vicariously liable under the Telephone Consumer Protection Act (“TCPA”) for unlawful telemarketing by third parties under certain circumstances. The FCC’s Declaratory Ruling addresses third-party liability for violations of the Do Not Call and prerecorded message restrictions of the Communications Act. The

On August 14, 2012, New York Governor Andrew Cuomo signed legislation, which will regulate all telemarketers doing business in the State and strengthen consumer protections relating to pre-recorded telemarketing messages. Introduced on June 12, 2012 by Assembly member Didi Barrett (AD 103), the new law aligns significantly with those provisions of the federal Telephone Consumer Protection Act and the Telemarketing Sales Rule, particularly with respect to the requirements relating to obtaining a consumer’s “express written consent” to receive pre-recorded telemarketing messages. The bill has an effective date 90 days after passage.

The new substantive provisions relate to express written consent requirements and heightened opt-out mechanisms. Under the new law, telemarketers may not deliver a pre-recorded message without the express written agreement of the consumer that (1) was obtained only after the telemarketer’s clear and conspicuous disclosure that the purpose of the agreement is to authorize telemarketing calls to that customer; (2) was not executed as a condition of purchasing any goods or service; (3) evidences the willingness of the consumer to receive telemarketing sales calls from a specific seller; and (4) includes the consumer’s telephone number and signature.

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This afternoon, the FTC announced that the manufacturer of Rascal Scooters has agreed to pay $100,000 to settle charges that it illegally called millions of consumers whose phone numbers were on the national Do Not Call Registry.

The company asked consumers to provide their numbers on sweepstakes entry forms so that the company could contact

In the past month, we’ve posted two entries (here and here) regarding court decisions interpreting the Telephone Consumer Protection Act (the "TCPA") in the context of mobile marketing campaigns. This morning, our colleagues at the Telecom Law Monitor posted an entry about an FCC decision interpreting the TCPA in the context of a