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July 2015 TCPA Compliance Monitoring Report
On June 30, the Federal Trade Commission (“FTC”) and the Florida Attorney General filed suit against Lifewatch Inc. (“Lifewatch”) and the President of Lifewatch, Even Sirlin. The complaint follows an agreement last year between the FTC and the State of Florida and one of Lifewatch’s telemarketing contractors, Worldwide Info Services. The agreement bans Worldwide Info Services from making robocalls and includes a $23 million judgment, most of which will be suspended if Worldwide Info Services surrenders assets including cash, cars, and a boat.
Despite this agreement with Worldwide Info Services, the FTC and the Florida Attorney General’s Office allege that Lifewatch continued making illegal robocalls using other telemarketing firms after Worldwide Info Services was banned from making autodialed or prerecorded calls. In addition to making unsolicited robocalls, the complaint alleges Lifewatch often placed calls to numbers on the Do Not Call Registry, used “spoofed” caller ID information, and used deceptive practices by targeting seniors with promises of a free emergency alert service only to reveal later in the call that there was a monthly service fee.
In a second lawsuit, a private plaintiff filed a class action suit against Charter Communications of California, LLC (“Charter”) on July 1. The plaintiff claims that Charter made numerous, unsolicited calls to her cell phone in an attempt to convince the plaintiff to use Charter’s service. The plaintiff says she is not a customer of Charter and has never provided any information to Charter or given Charter permission to call her cell phone using an autodialer or artificial or prerecorded voice.
The complaint seeks as much as $1,500, the statutory maximum for willful violations of the TCPA, for each violation of the TCPA. The plaintiff proposes a class in the thousands, with damages of at least $5 million. The Class Action Fairness Act of 2005 vests original jurisdiction in federal district court for class action lawsuits in which damages exceed $5 million. Some plaintiff’s have unsuccessfully attempted to avoid federal court by stipulating to limit damages to less than $5 million. However, in this case, the plaintiff filed her lawsuit against Charter in U.S. District Court in the Central District of California.
Both of these cases highlight the importance of developing TCPA and Telemarketing Sales Rule (“TSR”) compliance procedures for any company that relies on autodialing technology or artificial or prerecorded voice or text messages. Regardless of whether a company relies on a telemarketing contractor or conducts calling or texting campaigns in-house, a company should maintain an up-to-date Do Not Call list. It should also implement procedures to ensure it has the prior express consent of called or texted parties and give those parties a mechanism by which they can opt-out of receiving future calls or texts from the company.
If you have any questions about your company’s compliance with the TCPA or the TSR, please contact Linda McReynolds, lgm@commlawgroup.com – 703-714-1318; Jane Wagner, jlw@commlawgroup.com – 703-714-1321; or Robert Jackson, rhj@commlawgroup.com – 703-714-1316.
