1. Compliant Communications: Unsolicited Texts, Phone Calls, Faxes, and Emails

2. Compliant Communications: Unsolicited Texts, Phone Calls, Faxes, and Emails
PRESENTERS
Daniel S. Blynn, Esq., member, advertising and marketing practice, Venable LLP
Stephen R. Freeland, Esq., member, advertising and marketing practice, Venable LLP

3. Disclaimer
This presentation is intended as a summary of the issues presented and is not intended to provide legal advice. It is provided for the general information of the attendees. Legal counsel and advice should be sought for any specific questions and before taking any action in reliance on the information presented.

4. Texts, Phone Calls, and Faxes—the TCPA
Telephone Consumer Protection Act, 47 U.S.C. § 227
Regulates and restricts outbound communications
Generally prohibits (i) telemarketing calls or texts to numbers on the National Do Not Call Registry (“NDNC”) and company-specific internal do not call lists (“IDNCs”); (ii) autodialed calls to cell phones without proper consent; (iii) prerecorded message calls to cell phones and landlines without proper consent and required disclosures; (iv) inaccurate caller ID information; and (v) unsolicited fax advertisements (without required opt-out disclosure)
Under the TCPA, a text message is a “call”

5. Texts, Phone Calls, and Faxes—the TCPA
Statutory damages: $500 per call or text (or up to $1,500 per call or text for willful or knowing violations)
No cap on damages
Top 10 TCPA class action settlements between $10 million and $76 million

6. Texts, Phone Calls, and Faxes—the TCPA
Who is potentially covered by the TCPA?
Any company that uses the phone, text message, or fax for outreach... including staffing companies and recruiters
TCPA litigation increased 47% in the 17-month period following the FCC’s July 2015 TCPA Order, compared with the same period before the order

7. Texts, Phone Calls, and Faxes—the TCPA
Main TCPA issues:
Type of call or text—“telemarketing” vs. transactional or informational
Level of consent needed based on call or text type and method of delivery and how to get it
Revocation of consent
Reassigned or wrong numbers
Do Not Call list issues

8. Texts, Phone Calls, and Faxes—the TCPA
Type of call
“Telemarketing”—calls or texts with “the purpose of encouraging the purchase or rental of goods, or services”
Broadly construed by courts and the FCC
“Informational”—calls or texts that do not, themselves, contain marketing content
“Dual purpose” calls or texts—i.e., informational calls or texts motivated in part by the intent to sell property, goods, or services—are generally considered to be telemarketing under the TCPA

9. Texts, Phone Calls, and Faxes—the TCPA
Many courts have found that job opportunity and recruitment calls or texts are not “telemarketing” under the TCPA

10. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed
Autodialer (“automatic telephone dialing system”)—“capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers”
Basically, a platform that has the “capacity” to dial thousands of numbers in a short period of time without human involvement

11. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed:
ACA International v. FCC–F.3d–2018 WL (D.C. Cir., March 16, 2018).
Set aside 2015 FCC order, which asserted that equipment should be defined as an autodialer if it has the potential, future “capacity” to dial random or sequential numbers, even if that capacity could be added only through certain modifications or software updates
Concern that all smart phones could be “autodialers” under the 2015 order
But court refused to hold that “present ability” or actual use of a calling platform should be the determining factor—could still be an autodialer “if it could assume the requisite features merely upon touching a button on the equipment to switch it into autodialer mode”

12. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed:
“Manual” calling
Pure preview dialers (allow representatives to see number and make a decision whether or not to call) have been held not to be autodialers
Some texting platforms have been held not to be autodialers based on level of human involvement: (i) employee inputs telephone numbers into the platform manually, or by uploading or cutting and pasting an existing list of phone numbers; (ii) employee logs in to the platform to draft the message content; (iii) employee designates specific phone numbers to which the message will be sent; and (iv) employee clicks “send” to transmit the messages (can be transmitted in real time or as prescheduled messages sent at a future date).
Source: Luna v. Shac LLC, 122 F. Supp. 3d 936 (N.D. Cal. 2015)

13. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed:
“Prior express consent”—“persons who knowingly release their phone numbers [to the caller] have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary”
Can be oral or written (but best practice to obtain it in writing in case of a challenge)
It is not capturing a phone number from caller ID
It is not finding number in a phone book, on the Internet, or some other public source
It is not obtained via skip tracing
It is definitely not capturing a number from a Do Not Call request

14. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed:
“Prior express written consent”—agreement bearing (1) the signature of the person called or texted (either traditional “wet” signature or an electronic or digital one) that clearly authorizes caller to deliver telemarketing messages; and (2) the telephone number to which the signatory authorizes such telemarketing messages to be delivered
If the caller utilizes an autodialer and/or prerecorded message, then the written agreement must also clearly and conspicuously disclose both that (a) the call or text may be delivered using an autodialer and/or prerecorded message, and (b) the person is not required to provide his or her consent as a condition of purchase.

15. Texts, Phone Calls, and Faxes—the TCPA
Prior express written consent for telemarketing text messages:
One-time, on-demand texts sent immediately in response to consumer requests for information do not require EWC
E.g., “Text us as XXXX to receive a reply message with a link to information about how you can get a job directory.”

16. Texts, Phone Calls, and Faxes—the TCPA
Prior express written consent for telemarketing text messages:
For multiple texts, call to action can and should include clear and conspicuous EWC language
E.g., “By texting JOB from my mobile number, I agree to receive marketing text messages generated by an automated dialer from XYZ Inc. to this number. I understand that consent is not required to make a purchase.”
“Double-Opt In” method—in reply to consumer-initiated text, provide the information requested and ask for consent (with the required EWC disclosures) to send future marketing texts
E.g., “Reply Y to receive recurring mktg txts at this # via autodialer. Consent not required for purchase. Msg&DataRatesMayApply.”

17. Texts, Phone Calls, and Faxes—the TCPA
Level of consent needed:
Cellphone
Landline
Telemarketing
Not Telemarketing
Autodialer (voice call)
Prior express written consent
Prior express consent*
No consent needed
Autodialer
(text message)
Prerecorded
message call
Live operator
(not autodialer)

18. Texts, Phone Calls, and Faxes—the TCPA
Revocation of consent
ACA International court upheld that portion of the FCC’s 2015 order, which concluded that consumers may revoke their consent at any time through any reasonable means so long as the revocation “clearly expresses a desire not to receive further messages.”
BUT consent provided as bargained-for consideration supporting a contract may not be revoked unilaterally by the consumer. See Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017).
ACA International court noted that the 2015 order did not address the issue.

19. Texts, Phone Calls, and Faxes—the TCPA
Revocation of consent
“He said/she said” on oral revocation can be a jury issue
BUT, call or text recipients may not game the system
Viggiano v. Kohl’s Dep’t Stores Inc., 2017 WL (D.N.J. Nov. 27, 2017)—TCPA class action dismissed where defendant provided easy instructions to opt out of receiving automated texts (“text STOP to unsubscribe”) and the consumer failed to follow them, instead choosing to text back more verbose statements attempting to revoke consent.

20. Texts, Phone Calls, and Faxes—the TCPA
Reassigned or wrong numbers
Courts have construed them to be the same under the TCPA
“[M]illions of wireless numbers are reassigned each year”
2015 FCC Order—“called party” is the actual recipient of the call or text, rather than intended recipient
ACA International court rejected petitioners’ argument to the contrary

21. Texts, Phone Calls, and Faxes—the TCPA
Reassigned or wrong numbers
ACA International rejected FCC’s “one call” safe harbor for reassigned or wrong numbers
By allowing one no-liability call or text, FCC clearly did not mean to impose strict liability for such calls or texts—one call is just as arbitrary as two calls, 10 calls, or 100 calls
The standard for determining liability post ACA International is “reasonable reliance”
Was the caller’s reliance on consent that it had reasonable when it called or texted?

22. Texts, Phone Calls, and Faxes—the TCPA
Do Not Call rules
Apply only to telemarketing calls or texts
Exemptions: (i) written and signed consent from the consumer; or (ii) an “established business relationship” with the consumer
“Inquiry EBR”—for inquiries about product or service (three months)
“Transactional EBR”—based on consumer purchase or transactions (18 months)
Method of calling or texting is irrelevant
Must maintain an internal Do Not Call list (even if not telemarketing, best practice to honor DNC requests)

23. Texts, Phone Calls, and Faxes—the TCPA
Recent staffing company and recruitment TCPA cases
Dolemba v. Illinois Farmers Ins. Co., 213 F. Supp. 3d 988 (N.D. Ill. 2016)—insurance agent’s unsolicited prerecorded recruitment call to landline did not violate TCPA; but plaintiff stated a claim with respect to unsolicited calls to her cellphone.
Dolemba v. Kelly Services Inc., 2017 WL (N.D. Ill. Jan. 31, 2017)—dismissing with prejudice TCPA claim that defendant autodialed plaintiff’s cell phone without appropriate consent, advising her of employment opportunities; previously provided consent does not expire at some point in time on its own.
Friedman v. Torchmark Corp., 2013 WL (S.D. Cal. April 16, 2013)—autodialed prerecorded message call to plaintiff’s landline without consent inviting him to attend a “recruiting webinar” did not violate the TCPA.

24. Texts, Phone Calls, and Faxes—the TCPA
Recent staffing company and recruitment cases
Hilton v. Expand Inc. dba Gigats, No. 6:17-cv (M.D. Fla. filed Aug. 15, 2017)—plaintiff alleged unsolicited autodialed job-matching texts and do not call violations; voluntarily dismissed without prejudice in September 2017.
Lanza v. Upscale Events by Mosaic LLC, No. 9:13-cv (S.D. Fla. final approval March 24, 2014)—text messages to recruit contractors and construction workers; up to $6.5 million nationwide settlement allowing each class member to claim up to $150.
Vergera v. Uber Techs. Inc., No. 1:15-cv (N.D. Ill. final approval March 1, 2018)—challenge to Uber’s “Refer-a-Friend” text messaging driver and rider recruitment campaign; $20 million settlement fund to be distributed pro rata to class members who make claims.

25. Texts, Phone Calls, and Faxes—the TCPA
Recent staffing company and recruitment cases
Olney v. Job.com, 2014 WL (E.D. Cal. May 1, 2014)—denying defendant’s motion for summary judgment in action where plaintiff alleged autodialed calls to his cell phone (without proper consent) regarding educational opportunities to prepare for career; case settled individually and voluntarily dismissed on Dec. 1, 2014.
Payton v. Kale Realty LLC, 164 F. Supp. 3d 1050 (N.D. Ill. 2016)—granting summary judgment to defendant regarding claims of unsolicited autodialed texts offering employment opportunities.
Salmon v. CRST Expedited Inc., 2015 WL (N.D. Okla. March 25, 2015)—granting summary judgment to defendants in action alleging unsolicited autodialed, prerecorded message calls to plaintiff’s cell regarding truck driver employment opportunities.

26. Texts, Phone Calls, and Faxes—the TSR
Telemarketing sales rule
Applies only to telemarketing calls
Enforced by the FTC  no private right of action
Requires, among other things
Prompt oral disclosures in outbound telemarketing sales calls or texts and upsells
Prohibits, among other things
Material misrepresentations
Telemarketing calls to numbers on NDNC and IDNCs (absent an exception)
Prerecorded voice “robocalls” (absent an exception)

27. Texts, Phone Calls, and Faxes—the TSR
$40,654 for each TSR violation (~ per call)
Recent DNC settlements in the millions of dollars
Recent penalties imposed by a court in the hundreds of millions of dollars

28. Texts, Phone Calls, and Faxes—the TSR

29. Texts, Phone Calls, and Faxes—the States
Don’t You Forget About...the States!
States may have more restrictive requirements than the TCPA and TSR
Recent Arizona AG settlement—$1 million for telemarketing calls to numbers on the NDNC list

30. Emails—the CAN-SPAM Act
CAN-SPAM Act is the federal law that regulates commercial messages (“CEMs”)
It does not ban sending CEMs, but it does set rules for sending them
CAN-SPAM’s main provisions for CEMs
No false or misleading header information
No deceptive subject lines—must indicate commercial nature of message
Provide opt-out method—honor within 10 business days
Include sender’s valid physical postal address

31. Emails—the CAN-SPAM Act
Enforced by FTC and State AGs
Private right of action limited to ISPs
Each separate in violation of the law is subject to penalties of up to $40,654
Potential for multiparty liability
For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible

32. Texts, Phone Calls, and Faxes—the States
So now what?