It Was an Interesting Month for Telemarketers3 Nov, 2015 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Daniel S. Blynn
The proverb “May you live in interesting times” was especially apropos for telemarketers during the past month. In addition to the ongoing debate around such questions fundamental to the Telephone Consumer Protection Act (TCPA) as “What exactly is an autodialer?” two October events have the potential to add more spice to telemarketers’ lives.
Do You Have to Take Yes for an Answer?
On October 14, the United State Supreme Court heard oral arguments in Campbell-Ewald Co. v. Gomez. The background of the case is simple enough: after receiving an unsolicited message from Campbell-Ewald, Jose Gomez sued the company under the TCPA. Campbell-Ewald admitted fault and offered Gomez a full settlement of $1,503 – slightly more than the maximum award allowed under the TCPA. Gomez refused the settlement/Rule 68 offer of judgment, opening a legal can of worms.
Nine years later, the high-stakes case wound its way to the Supreme Court. The decision could have huge implications for class actions – especially TCPA class actions – because of the Act’s statutorily prescribed remedies.
If the court agrees with Campbell-Ewald, companies providing services regulated under the TCPA may receive a mechanism to short-circuit potential class actions by offering the maximum allowed award. If the court sides with Gomez, companies could still be faced with cases going forward if plaintiffs want a larger settlement.
During oral arguments, the justices split along ideological lines. The liberal justices sided with Gomez and the conservatives sided with Campbell-Ewald. Justice Anthony Kennedy seemingly alternated positions frequently, finding issue with both sides’ arguments. His will likely be the deciding vote.
The potential ramifications of this case make it one to watch. The court’s decision is expected next spring.
FCC Decides to Air the Dirty Laundry
On October 21, the Federal Communications Commission (FCC) announced that it would begin releasing the robocall and telemarketing consumer complaint data it receives on a weekly basis. The initiative is intended to “help developers build and improve ‘do-not-disturb’ technologies that allow consumers to block or filter unwanted calls and texts.”
The data released will include, among other things: the advertiser’s business telephone number; the caller ID number used; whether the recipient received an autodialed call or prerecorded message; and whether the call was abandoned.
The ramifications of the release of such information should be clear. The data will be a treasure trove for the plaintiffs’ bar, and there will likely be a significant uptick in TCPA class action complaint filings across the country.
The pending release of this data provides telemarketers with a great opportunity to ensure that their compliance programs are strong. Regardless of the state of their compliance programs, it is probably time to batten down their hatches and prepare for the coming storm.
Jeffrey D. Knowles is the chair of Venable’s Advertising, Marketing and New Media practice group. Daniel S. Blynn is an attorney in the group. They can be reached at (202) 344-4000.