Telephone Misuse of Private Data

An FTC action alleges a Florida telephone company named Blu failed to properly handle stored information.  Consumers who purchased phones may be entitled to compensation.  www.ftc.gov/system/files/documents/cases/1723025_blu_decision_and_order_4-30-18.pdf.

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Settlement In Do Not Call Energy Litigation

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A class action settlement was reached in an energy do not call claim.  The claimants said calls soliciting energy items had been made to multiple cell phones violating the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”).   The case is Abramson v. Alpha Gas & Electric, (N.Y 2017),  Case No. 7:15-CV-05299-KMK. The Court  notice says,

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
THIS NOTICE CONCERNS SETTLEMENT OF A LAWSUIT THAT MAY ENTITLE YOU TO RECEIVE A PAYMENT

This is a Notice of a proposed Settlement in a class action lawsuit Abramson v. Alpha Gas and Electric, LLC, United States District Court for the Southern District of New York, No. 15-CV-05299-KMK (the “Action”). The settlement would resolve claims against defendant Alpha Gas and Electric, LLC (“Alpha”) arising from telemarketing calls made by it to cellular telephone numbers in alleged violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”).

WHAT IS THE LAWSUIT ABOUT?

The lawsuit alleges that telemarketing calls made by Alpha to consumers’ cellular telephone numbers violated the TCPA. Alpha has asserted, as a defense in the Action, that it should not be held liable for the calls at issue. This settlement does not resolve that disputed issue, or the disputed question of whether the calls violated the TCPA. The Court has preliminarily certified this matter as a class action for settlement. You are a member of the Settlement Class if you are included in the following:

All persons in the United States who, from July 8, 2011 through November 10, 2016, who subscribed to, used, or who owned any of the phone numbers listed on the Class List and who received phone calls from any of the Released Parties using an automated telephone dialing system, or prerecorded voice, or who were listed on the Do Not Call list or otherwise did not consent to the receipt of such calls, or who otherwise have claims against the Released Parties arising under the TCPA or similar federal, state or local laws governing such matters, including without limitation the claims alleged in the Action,
including calls placed to cell phones without the recipients’ consent.

Have you been a victim of unwanted calls.  Call (973) 598-1980 for a free consultation about your rights.

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Company Liability for Other Making Calls

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Even if discovery shows that a third party agent acting on the defendant’s behalf made the calls in question, the Telephone Consumer Protection Act would still provide for liability. The Supreme Court of the United States recently clarified that the Telephone Consumer Protection Act does provide for vicarious liability. See Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 673 (2016) (the Federal Communication Commission “has ruled that, under federal common-law principles of agency, there is vicarious liability for TCPA violations . . . and we have no cause to question it”). Other courts agree that “the TCPA can impose liability directly or vicariously upon any person or entity on whose behalf a third party places a call in violation of § 227(b)(1)(A).” Hartley-Culp v. Green Tree Servicing, LLC, 52 F. Supp. 3d 700, 703 (M.D. Pa. 2014); see also Lofton v. Verizon Wireless (VAW) LLC, 2015 U.S. Dist. LEXIS 34516 (N.D. Cal. Mar. 18, 2015) (“Under the TCPA, a defendant may be held vicariously liable for calls it does not directly initiate ‘under federal common law principles of agency.'”) (quoting In re Joint Petition filed by Dish Network, LLC, 2013 FCC LEXIS 2057 (May 9, 2013) (a seller may be liable for violations by its representatives under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification); Thomas v. Taco Bell Corp., 582 F.App’x 678, 679 (9th Cir. 2014) (“Vicarious liability can provide the basis for liability for a TCPA violation”).

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Free Consultation on your Do Not Call List Claim

Do Not Call List: FTC Applie Robocall Rule to Soundboard Technology

The Court found that soundboard are subject to regulation,

“The traditional robocall is a one-way, pre-recorded communication that does not involve any human interaction. Soundboard technology, on the other hand, allows for a two-way conversation between the caller and recipient. After initiating a soundboard call, a live sales agent uses pre-recorded audio clips to respond to the recipient’s statements and can, if necessary, opt to engage in a live conversation with the consumer. Thus, like a robocall, soundboard technology uses pre-recorded messages to market a good or service, but ultimately differs from a robocall because it depends on a live sales agent.

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. Before the new regulations went into effect in September 2009, see 73 Fed. Reg. at 51,164, a telemarketing firm, Call Assistant LLC, sent a letter to the FTC seeking clarification of whether the technological distinction placed soundboard calls outside of the scope of the robocall regulation.”

 

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ENERGY COMPANIES SOLICITATION AND THE DO NOT CALL LIST

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In seeking new customers, some energy claims may contact people on the Do Not Call List.  Those receiving unwanted solicitation may have claims for compensation and methods to stop the calls.  Here are some excerpts from recent Do Not Call list energy claims.

ALLARD V. SCI DIRECT, INC.
Case No. 16-cv-01033 (M.D. Tenn. Jul. 10, 2017) – .
Un its Answer to the First Amended Complaint, SCI admits that it did not have a written policy for maintaining a do-not-call list. Dkt … training on any general do-not-call list or policy.. In addition, Mr. Halprin claims that he occasionally received leads to call on a “Spice List,” which did not contain … contain previous call dispositions.  Often persons on the Spice List claimed to have previously asked Defendant not to call.

OWENS V. STARION ENERGY, INC.
Case No. 3:16-cv-01912 (VAB) (D. Conn. Jun. 30, 2017) – Cited 0 times.
Plaintiff, brings this putative class action against Starion Energy, Inc. (“Starion … (“Starion Energy” or “Defendant”), alleging violations of the “Do Not Call” provisions of the Telephone Consumer Protection Act (“TCPA”).

KLEIN V. COMMERCE ENERGY, INC.
Civil Action No. 14-1050 (W.D. Pa. Jun. 21, 2017) . This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. In his … (“Klein”) claims that numerous telephone calls made to him by Collectcents on behalf of Commerce Energy violated the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 et seq.,

 

Free Consultation on Your Energy-related Do Not Call List Claim
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Do Not Call List Requirement

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All artificial or prerecorded voice telephone messages shall:

(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated;

(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign; and

(3) In every case where the artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line or any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii), provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information required in paragraph (b)(1) of this section. When the called person elects to opt out using such mechanism, the mechanism, must automatically record the called person’s number to the seller’s do-not-call list and immediately terminate the call. When the artificial or prerecorded voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person’s number to the seller’s do-not-call list.

(c) No person or entity shall initiate any telephone solicitation to:

(1) Any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location), or

(2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator. Any person or entity making telephone solicitations (or on whose behalf telephone solicitations are made) will not be liable for violating this requirement if:

(i) It can demonstrate that the violation is the result of error and that as part of its routine business practice, it meets the following standards:

(A) Written procedures. It has established and implemented written procedures to comply with the national do-not-call rules;

(B) Training of personnel. It has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules;

(C) Recording. It has maintained and recorded a list of telephone numbers that the seller may not contact;

(D) Accessing the national do-not-call database. It uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules, employing a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintains records documenting this process.

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Do No Call List Claim Against Security Systems

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A recent case outlined claims against a security company for making unwanted calls.   Cunningham v. Rapid Response Monitoring Servs., Inc. (M.D. Tenn., 2017).

“Cunningham is a Davidson County resident who claims to have received at least twenty-eight phone calls, sometimes only one or two seconds apart, from callers purporting to be conducting a “safety survey” but in fact marketing home security systems and related services.  Cunningham participated in one of those calls—he says, for the purpose of ascertaining the identity of the party responsible—and found that it consisted of a prerecorded message instructing him to press ‘1’ to speak to an agent about the survey. (Id. at ¶¶ 13-14.) The marketing effort turned out to be in support of a deal pursuant to which the recipient would accept the installation of a “free” home security system by Security Systems Inc. d/b/a Safeguard America (“Safeguard America”) and would agree to pay ongoing fees for monitoring services to be provided by Rapid Response Monitoring.”

Consumers receiving unwanted calls may be entitled to compensation and a method to stop the calls.  Call (973) 598-1980 for a free consultation

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CLAIMS UNDER THE DO NOT CALL LIST

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People who receive unwanted calls may be entitled to compensation and relief.  A recent case discussed their right.

The TCPA provides in pertinent part:

(b) Restrictions on use of automated telephone equipment
(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—
(i) to any emergency telephone line . . . ;
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
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(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .
47 U.S.C. § 227(b)(1) (emphasis added).

The TCPA provides a private right of action for violation of 47 U.S.C. § 227(b)(1):

(3) Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.  47 U.S.C. § 227(b)(3).

The section relating to residential telephone subscribers is 47 U.S.C. § 227(c) and governs calls to the National Do-Not-Call Registry. See 47 U.S.C. § 227(c)(1) (authorizing the Federal Communications Commission (“FCC”) to initiate rulemaking concerning the privacy rights of residential telephone subscribers). Section 227(c)(5) provides for a private right of action for § 227(c) violations where a person has received more than one telephone call “by or on behalf of” the same entity in violation of § 227(c). 47 U.S.C. § 227(c)(5).

To prevent evasion of the TCPA’s call prohibitions, the FCC has treated calls made by a third party on behalf of a company as if the company itself made the call, whether in relation to collection or solicitation calls subject to § 227(b) or in rules governing solicitation calls addressed in § 227(c). With respect to collection calls under § 227(b)(1)(A)(iii) made to wireless numbers, the FCC explained:

To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications. . . . [A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.
In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA Int’l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 564 ¶ 10 (2008) (footnotes omitted). In its ruling, the FCC noted that the prohibitions on the use of autodialers in § 227(b)(1)(A)(iii) apply regardless of the content of the call, as opposed to the separate restrictions of § 227(c) on “telephone solicitations” that do not apply to calls that are solely for the purpose of collecting a debt. 23 FCC Rcd. at 565 ¶ 11.

As a remedial consumer protection statute, Gager v. Dell Financial Services, LLC, 727 F.3d 265, 271 (3d Cir. 2013), the TCPA’s language is to be construed “broadly to effect its purpose.” Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 997 (3d Cir. 2011) (applying principal in context of Fair Debt Collection Practices Act “FDCPA” case). If proposed interpretations of the TCPA are equally plausible, the scales tip in favor of the consumer. Leyse v. Bank of America Nat. Ass’n, 804 F.3d 316, 327 (3d Cir. 2015).

Considering the TCPA, the Supreme Court has explained:

Voluminous consumer complaints about abuses of telephone technology—for example, computerized calls to private homes—prompted Congress to pass the Telephone Consumer Protection Act of 1991 (TCPA or Act), 47 U.S.C. § 227. . . . The Act bans certain practices invasive of privacy and directs the Federal Communications Commission (FCC or Commission) to prescribe implementing regulations.  Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). The Court of Appeals for the Third Circuit observed that “Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls.” Gager, 727 F.3d at 268 (citations omitted).

The legislative history of the TCPA refers to prerecorded calls as “an intrusive in invasion of privacy” and indicates that the TCPA is aimed at protecting individuals’ privacy rights while balancing legitimate telemarketing practices.  Debt collection calls as well as telemarking calls are within the TCPA’s purview.  Forrest v. Genpact Services, LLC, 962 F. Supp. 2d 734, 736 (M.D. Pa. 2013) (holding plaintiff stated a claim under both the TCPA and the FDCPA for excessive debt collection calls).

For purposes of the TCPA, it does not matter that P.S. was the intended recipient of the calls. In Leyse, the Court of Appeals for the Third Circuit held that the individual who answers the robocall6 has standing to sue. 804 F.3d at 327. The aggrieved persons under the TCPA’s provisions include the actual recipient of the telephone call, 804 F.3d at 325-26, because “[i]t is the actual recipient, intended or not, who suffers the nuisance.

Klein v. Commerce Energy, Inc. (W.D. Pa., 2017).

CALL FOR A FREE CONSULTATION ON YOUR RIGHTS UNDER THE DO NOT CALL LAW

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ENERGY DO NOT CALL CLAIMS

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Many consumers have been called for supposed energy or electric savings.  Sometimes supposed savings have been exaggerated.  Our office is handling claims for annoying calls to people on the Do Not Call List.  Here is a recent case report.

“Nancy Owens (“Plaintiff”), brings this putative class action against Starion Energy, Inc. (“Starion Energy” or “Defendant”), alleging violations of the “Do Not Call” provisions of the Telephone Consumer Protection Act (“TCPA”). Compl., ECF No. 1. Starion Energy has moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6).1 Def. Mot. to Dismiss, ECF No. 23. Starion Energy also seeks to strike several components of the Complaint. Id. For the reasons outlined below, Starion Energy’s Motion to Dismiss is DENIED.

I. FACTUAL BACKGROUND

Ms. Owens alleges that, in September 2016, Starion Energy called her home telephone number multiple times to promote their services. Compl. ¶¶ 14-16. According to Ms. Owens, her home telephone number was listed on the national “Do Not Call” registry at the time of those calls. Id. On September 23, 2016, Ms. Owens allegedly answered the phone to request that  Starion Energy stop calling her, and she later wrote to Starion Energy to ask if they had “any evidence of her consent to make these unwanted calls[.]” Id. at ¶ 19. In response, Starion Energy allegedly informed Ms. Owens that her number would be placed on the company’s internal “Do Not Call” registry. Id. at ¶ 20.

According to Starion Energy, the telephone number that they contacted was a business telephone number, not a home telephone number. Def. Mem. in Supp. at 10-11, ECF No. 23-1. While Ms. Owens does not deny that the number in question functions as a business number, she explains that it is a home-based business, thus it is the same as her residential number. Pl. Mem. in Opp. at 15-17, ECF No. 26.

Ms. Owens brings this lawsuit on behalf of all people nationwide whose telephone numbers were registered on the national Do Not Call registry and who received unsolicited telephone calls from Starion Energy up to four years before the filing of the Complaint.”

HAVE YOU RECEIVED UNWANTED CALLS, CALL (973) 598-1980 FOR A FREE CONSULTATION ON YOUR RIGHTS

 

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