ACCESS MCLE Privacy Laws Applicable To Wireless Marketing

Transcription

1 ACCESS MCLE Privacy Laws Applicable To Wireless Marketing William B. Baker (202) DISCLAIMER These materials and accompanying Access MCLE, LLC audio CLE program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an as-is basis and should be independently verified by experienced counsel before being applied to actual matter. 1

2 Table of Contents 1. Laws Applicable to Wireless Marketing slide 3 2. TCPA, 47 U.S.C. 227(b)(A) slide 6 3. What Is A Call? slide 7 4. What is an ATDS? slide 8 5. Court Rulings slide TCPA: Prior Express Consent slide Text Marketing slide Vicarious Liability Under the TCPA slide Do Not Call slide Marketing and CAN-SPAM Act slide The Role of the FTC slide FTC s Recent Enforcement Priorities slide Mobile Apps slide Private Lawsuits slide 25 2

3 Principal Federal Laws Applicable to Wireless Marketing Telephone Consumer Protection Act, 47 U.S.C. 227 Do Not Call Act CAN-SPAM Act, 15 U.S.C FTC Telemarketing Sales Rule FTC Section 5 Consumer Protection Authority 3

4 Laws and Rules Vary By Media These federal (and state) laws were enacted years before smartphones Some require opt-in consent for marketing; some opt-out Some require consent to be written, others allow oral consent or do not require at all Format of address makes a difference Enforcement mechanisms vary 4

5 Which law applies depends on the technology used Voice Text TCPA, Do Not Call, Telemarketing Sales Rule TCPA, Do Not Call CAN-SPAM (FTC & FCC) Mobile App FTC Section 5 Browser FTC Section 5 5

6 TCPA, 47 U.S.C. 227(b)(A) Unlawful... to make any call... using any automatic telephone dialing system or an artificial or prerecorded voice--... (iii) To any telephone number assigned to a paging service, cellular telephone service... for which the called party is charged for the call FCC can exempt calls that are not charged to user. 6

7 What Is A Call Voice calls (live or prerecorded) Text messages FCC: (GroupMe 2014) texts are calls Joffe v. Acacia Mortgage (Ariz. 2005); Satterfield (9 th Cir.) YouMail FCC petition (software-based menu of advanced voic features) VoAPPS FCC petition 7/31/14: service leaves message in wireless vm without calling device 7

8 What is an ATDS? 47 USC 227(a)(1) The term automatic telephone dialing system means equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers. 8

9 FCC Interpretation of ATDS FCC (2003): Equipment need only have the capacity to store or produce telephone numbers using a random or sequential number generator and to dial such numbers without human intervention FCC has not required that equipment actually use a random or sequential number generator 9

10 FCC has received many petitions for clarification, reconsideration, exceptions 25 petitions for reconsideration/clarification/ exemption currently pending at FCC. 9 address ATDS Some seek to loosen: PACE, ACA, TextMe, Glide Talk: limit capacity to configuration when calls placed Some seek to broaden: Fried: if combined equipment collectively can have capacity to store or produce numbers and dial at random, sequentially, or from a database Some seek exemptions for particular types of calls: American Bankers Ass n 10

11 Court Rulings Are Mixed Compare: Satterfield v. Simon & Schuster (9 th Cir. 2009) & Sherman v. Yahoo (S.D. Cal. 2014) (potential) with Gragg v. Orange Cab (W.D. Wash 2014) (present capability required) & Hunt v. 21 st Mortgage Co. (N.D. Ala. 2013) (no liability if substantial modification required to produce calls from number generator) Sterk v. Path (N.D. Ill. 2014) (stored #s without human intervention numbers provided by 3d persons); interlocutory review pending 11

12 TCPA: Prior Express Consent exception FCC (1992) (knowing release of phone number is permission) absent instructions to the contrary Consents do not expire FCC (2012) required PEC for telemarketing to be in writing as of 10/16/13 and freely given FCC (2012) also eliminated 20-year old EBR exception FCC exempted entities subject to HIPAA 12

13 Defining Prior Express Consent a frequent issue in private lawsuits Courts have found consent in strange places Provided for verification purposes 10 years before the calls were made. Kolinek v. Walgreen Co. (N.D. Il ) Airline web form. Baird v. Sabre, Inc. (C.D. Cal. 2014) Blood donor form. Murphy v. CDI Biologicals Orlando (M.D. Fla. 2013). But...: Soppet (7 th Cir. 2012): called party means called party, not intended party Osorio (11 th Cir. 2014): calls to housemate s cell number that was provided on credit application remanded to determine if agency existed Lamont (D.N.H. 2014) (spouse cannot consent for telemarketing to other spouse s cell phone) 13

14 FCC Rulings on Prior Consent In Cargo Airline Ass n (2014): FCC exempted package delivery On-Demand text notifications under limited conditions where delivery service not in position to obtain consent GroupMe (2014): prior express consent to nontelemarketing texts can be obtained by an intermediary; reaffirmed that texts are calls SoundBite (2012) (permitting one-time text to confirm revocation of consent) 14

15 Pending Petitions to FCC re Prior Express Consent FCC currently has pending numerous petitions regarding prior written consent ACA: Prior express consent/debt calls Satcom: Mobile numbers provided prior to 2012 FCC order Coalition: PWC provided prior to 10/16/2013 effective date of 2012 Order DMA: Asks for forbearance for consents obtained prior to 10/16/2013 Retail Industry Leaders Ass'n: On-Demand text services 1 time texts initiated by consumer Stage Stores: asks exception for call to wireless number for which prior express consent existed before reassigned without notice/knowledge of caller Rubio s (8/11): seeks exception where employer has PEC to remote text messaging alerts to employees, then number is reassigned without its knowledge 15

16 Big current issue: the Effect of Number Reassignment on Consent Problem: User who gave prior consent turns in phone and number is subsequently reassigned to new user Soppet (7 th Cir. 2012): called party means called party Calls to reassigned or ported numbers (at least 6 petitions to FCC pending) Stage Stores: wireless number for which prior express consent existed before number was reassigned. United Healthcare: seek exception/exemption for informational calls to numbers ported to wireless unbeknownst to caller ACA: asks FCC to rule that PEC attaches to the debtor, not to the phone number. Also wants safe harbor for autodialed nontelemarketing calls to wrong numbers Comcast: exception for any calls to reassigned numbers where caller had PEC and caller unaware of reassignment Consumer Bankers Ass n (9/19): called party means intended recipient 16

17 Can Prior Express Consent be revoked? Yes. Gager v. Dell (3d Cir. 2013) FCC has implicitly said yes: SoundBite (FCC 2012) (one-time text to confirm revocation of consent) Maybe not: Santander Consumer USA FCC petition asks for ruling that consent cannot be revoked for non-telemarketing calls and texts, or only under certain conditions. 17

18 Text Marketing FCC and some courts have ruled that texts are calls under the TCPA TCPA applies: ATDS & DNC restrictions FTC s TSR applies: TSR & DNC restrictions SoundBite (FCC 2012): confirmatory texts ok w/in 5 minutes 18

19 Vicarious Liability Under the TCPA DISH Network (FCC 2013): sellers can be vicariously liable for actions of its telemarketers Extent of vicarious liability Lucas(FCC petition): person assisting telemarketer and knows or consciously avoids knowing of TCPA violations Smith v. State Farm (N.D. Ill. 8/11/2014) Insurance coverage issues 19

20 Do Not Call Applies to Mobile Devices FTC established registry under TCFAPA & TSR FCC extended scope under TCPA Mobile numbers eligible EBR is exception to Do Not Call, but not to ATDS Limited safe harbor for erroneous calls to mobile devices on DNC registry 20

21 Marketing: Subject to the CAN-SPAM Act FTC in 2004 created opt-out regime for marketing FCC authority over Mobile Service Commercial Messages s addressed to Internet domain names assigned by wireless carriers or d.html FCC uses FTC commercial purpose test Strict express opt-in (can be oral) Texts are calls (TCPA); not s (CAN-SPAM) 21

22 The Role of the FTC Primary consumer protection agency FTC s Telemarketing Sales Rule prohibits deceptive/abusive telemarketing practices FTC created DNC Registry as part of TSR; Congress ratified with Do Not Call Act TCPA gave no authority to FTC, but provided legal basis for FCC to extend Do Not Call to entities under its jurisdiction FTC: primary regulator of commercial under CAN- SPAM Act FTC: primary enforcer of Children s Online Privacy Protection Act 22

23 FTC s Recent Enforcement Priorities Mobile App Recommendations Amendments to COPPA regulations Dot.Com Disclosures Big Data report 23

24 Mobile Apps FTC Shopping Apps (Aug. 2014) Dot.com Disclosures (Mar. 2013) NTIA multistakeholder process Location as sensitive information Mobile App Privacy Disclosures (Feb. 2013) COPPA: yes, and specifically applies to mobile apps 24

25 Private Lawsuits Two private rights of action under TCPA ATDS/prerecorded to mobile ($500) Do Not Call ($500) Penalties per call Treble damages for knowing/willful Class actions FTC Act/TCFAPA enforced by agency. Insurance coverage? 25