The Latest From the TCPA Legal Landscape Edward J. Mullins III Senior Associate Jeffrey A. Backman Shareholder

#16PACE Calling/Texting Is Highly Regulated  Federal  Telephone Consumer Protection Act (TCPA)  Telemarketing Sales Rule (TSR)  Fair Debt Collection Practices Act (FDCPA)  State Telemarketing & Debt Collection Laws  Rules on How, When, What You Need Before You Dial, and Exceptions Vary

#16PACE Why Does This Matter to Me?  Telephone and text marketing communications, including B2B  TCPA Statutory Damages (Private litigants, FCC, State AGs)  $500 to $1,500 per call or text  TSR Civil Penalties (FTC)  Up to $16,000 per violation  State AGs can also pursue state consumer law remedies  Third Party Liability – Vendor  Seller  Direct liability where seller physically places call or text.  Vicarious liability for violations by third parties under agency principles, like calling on behalf of seller.  Sellers and vendors must coordinate compliance efforts.

#16PACE TCPA Actions Skyrocketing 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

#16PACE TCPA Class Action Lawyers 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

#16PACE Autodialed Marketing Calls to Cell  PEWC  Telemarketing Autodialed Calls/Texts  Prior Express Written Consent  How do you obtain consent? “Consistent with the FTC, we now similarly conclude that consent obtained in compliance with the E-SIGN Act will satisfy the requirements of our revised rule, including permission obtained via an , website form, text message, telephone keypress, or voice recording.”  Can you locate and produce proof of consent by a particular customer as needed?  Consider five years of record keeping

#16PACE Autodialed Non-Marketing Calls to Cell  PEC  Non-telemarketing Autodialed Calls/Texts  Prior Express Consent  Often satisfied when consumer provides number as part of a transaction (i.e., setting up account, notifications)

#16PACE Obtaining Consent  Variety of ways to obtain PEC consent:  Handwritten agreement, , online, telephone, point of sale  What is your PEWC consent language?  Clear and conspicuous disclosure, authorized number, signature, autodialed telemarketing, no obligation to consent if purchasing or using services  Consent to receive calls embedded in terms and conditions or privacy policy probably insufficient  Consent language should be front and center with an “opt- in” check box so it is very clear

#16PACE FCC’s July 2015 Order: Revocation of Consent A called party may revoke consent at any time and through any reasonable means. Seller cannot limit how revocation may occur and must demonstrate that it had right type of consent to call the number at issue.

#16PACE Courts: “Reasonable” Revocation?  Specific evidence of revocation is required. Haysbert v. Navient Solutions Inc. (C.D. Cal.)  Avoid proving a negative that consent wasn’t reasonably revoked. See FCC Comm’r O’Reilly dissent, July 2015 Order.  Revocation of consent must be “clearly expressed”. Schweitzer v. Comenity Bank (S.D. Fla.)  Whether the “defendant had reason to know that the plaintiff was no longer willing to accept its automated calls to her cellular telephone.” Brown v. Credit Management LP (N.D. Ga.)

#16PACE Receiving “Reasonable” Revocation  When is revocation of consent reasonable?  Voice message stating: “I revoke consent to receive any automated calls”  “Call my lawyer”  “Don’t call me at this number”  “No thank you”  “Don’t call me during times like this”  “You have the wrong number”  Case-by-case analysis, including purpose of call

#16PACE FCC: Expansive Definition of “Autodialer” Equipment that has the present or potential capability could be considered an autodialer  Software with “potential future functionality”  Modifications must be more than “theoretical”  Human intervention factors

#16PACE Courts: Not Actionable “Autodialer”  “Human intervention” removes equipment from the definition of autodialer, always? McKenna v. WhisperText (N.D. Cal.); Luna v. Shac (N.D. Cal.)  Strauss v. CBE Group, Inc. (S.D. Fla. Mar. 28, 2016)  Accounts receivable provider used a Noble Systems Predictive Dialer to call landlines, but a Manual Clicker Application (MCA), not connected to a predictive dialer, to dial cell phones.  “Because CBE has presented substantial evidence that human intervention is essential at the point and time that the number is dialed using the MCA and that the Noble equipment used does not have the functionalities required to classify it as a predictive dialer, Defendants have made a prima facie showing that they are not liable as a matter of law for the calls ….”

#16PACE FCC: Who Is the Maker of a Call?  “We look to the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” July 2015 Order ¶ 30.  YouMail app users determined “whether to send the auto-reply text message” among other factors. ¶ 31.  TextMe’s multi-step process in which the app user determines to whom and when invitational text messages sent. ¶ 37.  Similar to human intervention analysis.  Makers of call and senders of texts (your clients) may still be liable.

#16PACE Do Not Call – “The Lists”  National DNC Registry (marketing calls)  Internal DNC List (marketing calls)  State DNC Registries (marketing calls)  Wireless/Portability  *NEW* Revoking Consent List (Non-Marketing)

#16PACE DNC Safe Harbor – Affirmative Defense Written Guidelines Training on DNC Procedures Internal DNC List DNC Suppression Monitoring and Enforcement Error

#16PACE Questions? Edward J. Mullins III Senior Associate Kelley Drye & Warren LLP Parsippany, NJ (973) Jeffrey A. Backman Shareholder Greenspoon Marder Fort Lauderdale, FL (954)