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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.
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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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
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
(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
1. Home Security Calls
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. According to the plaintiff, 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 Services, Inc.
2. Do Not Call List Legal Claims
According to one court, “The injuries associated with unwanted marketing calls may be comparatively slight, but they are both real and well documented. Unwanted telemarketing can be a “nuisance” and “an intrusive invasion of privacy.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (quoting TCPA, 105 Stat. 2394, note following 47 U.S.C. § 227). Abusive telemarketing can also “waste the recipients’ time” and may even in some cases “impede the free flow of commerce.” Am. Copper & Brass, Inc. v. Lake City Indus. Prod., Inc., 757 F.3d 540, 544 (6th Cir. 2014). Such intangible harms were no strangers to the courts even before Congress chose to address them—”[a]ctions to remedy defendants’ invasions of privacy, intrusion upon seclusion, and nuisance have long been heard by American courts, and the right of privacy is recognized by most states.”
In 1991, Congress, in part due to the interstate character of much telemarketing, elected to combat certain particularly unwelcome telemarketing practices by adopting the TCPA.2 47 U.S.C. 227. The TCPA provides for enforcement both by state governments, 47 U.S.C. § 227(g)(1), and private individuals who are the targets of certain prohibited practices, 47 U.S.C. § 227(b), (c)(5).
If you received unwanted calls, you may be entitled to compensation.
Call (973) 598-1980 for a Free Consultation on your Do Not Call List Claims
The Federal Communications Commission today said that a scammer named Adrian Abramovich “apparently made 96 million spoofed robocalls during a three-month period” in order to trick people into buying vacation packages. The FCC proposed a fine of $120 million, but it will give the alleged perpetrator a chance to respond to the allegations before issuing a final decision.
The robocalls appeared to come from local numbers, and they told recipients to “press 1” to hear about exclusive vacation deals from well-known hotel chains and travel businesses such as Marriott, Expedia, Hilton, and TripAdvisor, the FCC said.
“Consumers who did press the button were then transferred to foreign call centers where live operators attempted to sell vacation packages often involving timeshares,” the FCC said. “The call centers were not affiliated with the well-known travel and hospitality companies mentioned in the recorded message.”
In reality, the travel agencies that robocall recipients were directed to “were fronts for one or more Mexican-based call centers engaged in selling timeshares and vacation. https://arstechnica.com/information-technology/2017/06/scammer-who-made-96-million-robocalls-should-pay-120m-fine-fcc-says/ packages to various timeshare facilities
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