On March 16, 2018, the D.C. Circuit Court of Appeals released a long-awaited decision in ACA International, et al. v. FCC, unanimously ruling to narrow a 2015 Federal Communications Commission (FCC) order (the “2015 Order”) that expanded the scope of the Telephone Consumer Protection Act (TCPA). The TCPA is a federal law that governs marketing … Continue Reading
The European Commission has released proposals for new legislation that seeks to create stronger privacy in electronic communications. The draft Privacy and Electronic Communications Regulation (the “Regulation”) is intended to replace the ePrivacy Directive (2002/58/EC) and will also bring the law in line with the new rules as set out in the General Data Protection … Continue Reading
Last Thursday the Federal Communications Commission (FCC) issued an order confirming that companies must include opt-out instructions on all fax ads, even for recipients who previously agreed to receive a fax from the company. The order clarifies that solicited fax ads, like unsolicited ads, must also comply with the rules set forth in the FCC’s … Continue Reading
On October 16, 2013, the Federal Communications Commission’s (“FCC”) new rule implementing the Telephone Consumer Protection Act (“TCPA”) will go into effect. These are rules with teeth, as the TCPA allows recovery of anywhere between $500 and $1,500 for each improper communication and does not require a showing of actual injury. This makes the TCPA a … Continue Reading
In its Memorandum Opinion and Order dated November 9, 2012, the US District Court for the Northern District of Alabama in Pinkard v. Wal-Mart Stores, Inc. held that under the Telephone Consumer Protection Act (TCPA), when an individual discloses his or her cellular phone number to a business, that individual is deemed to have expressly consented … Continue Reading
In a move that will no doubt please many consumers, on February 15, 2012, the Federal Communications Commission approved a new set of rules aimed to substantially curb the practice of telemarketers to engage in "robocalling", or the placing of automatic, pre-recorded calls. The key development in the FCC’s 48 page Report and Order is … Continue Reading
Recently, several large retail chains have started offering customers the option to receive electronic receipts for in-store purchasers, as the New York Times reports. For instance, a cashier may ask a customer for his or her email address at check-out and then email the receipt to the customer. Paperless receipt programs offer retailers new and exciting marketing opportunities--for instance, adding a retail store purchaser's email address to the company's customer relationship management database, even if that customer never shops online. But with these new opportunities come potential liabilities from old laws that were not written with this new technology in mind.
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The maker of Rascal Scooters agreed to pay $100,000 as a civil penalty to settle a complaint filed by the FTC alleging that Rascal Scooters violated the FTC Act and the FTC's Telemarketing Sales Rule.
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A preliminary injunction recently obtained by the State of Missouri against Sirius XM Radio, Inc. provides a reminder that some states have “Do Not Call” lists that are separate from the National Do Not Call Registry maintained by the Federal Trade Commission and the Federal Communications Commission.… Continue Reading
On April 27, 2010, the Federal Trade Commission announced separate settlements with women's clothing retailer Talbots and its telemarketer SmartReply, Inc. for violations of the Telemarketing Sales Rule ("TSR"). The FTC alleged that SmartReply's robocalls for Talbots did not allow consumers to opt out of future calls until they had listened to almost all of the prerecorded solicitation or failed to provide opt out instructions; did not immediately disconnect consumers that chose to opt out; and failed to notify live call recipients of their right to opt out at any time during the call.
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The Florida Supreme Court recently held that a commercial general liability ("CGL") insurance policy that provides coverage for an "advertising injury" covers a violation of the Telephone Consumer Protection Act ("TCPA"). The definition of "advertising injury" in the CGL policy at issue provided coverage for an "injury arising out of" the "[o]ral or written publication of material that violates a person's right of privacy." In finding that coverage existed, the court noted that the TCPA protects the privacy right to seclusion.
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The U.S. District Court for the Northern District of Illinois recently ruled that a plaintiff may maintain a suit for receiving an unsolicited text message under the Telephone Consumer Protection Act (TCPA) of 1991, even though the plaintiff was not actually charged for receiving the message. In the ruling, the court noted that in enacting the TCPA, Congress was concerned with consumers' privacy rights and the nuisances of telemarketing.
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The first lawsuit challenging Maine’s Act to Prevent Predatory Marketing Practices Against Minors has concluded. The District of Maine issued a Stipulated Order of Dismissal on September 9, stating that there is a likelihood that the statute is "overbroad and violates the First Amendment", and putting third parties "on notice" that a private suit "could … Continue Reading
In mid-September, Maine’s “Act to Prevent Predatory Marketing Practices against Minors” is scheduled to take effect. Due to the lack of a scienter element in several of the requirements of this new law, this Act could have far-reaching consequences for all businesses that engage in direct marketing or that sell or transfer personal information to … Continue Reading
On September 10, 2008, Timberland Company, an outdoor clothing and shoe merchant, along with co-defendant ad agencies GSI Commerce Inc. (“GSI”) and AirIt2Me Inc. (“AirIt2Me”), settled charges brought under the Telephone Consumer Protection Act (“TCPA”) arising from unsolicited text messages advertising Timberland’s holiday sale. Pursuant to the settlement, Timberland must employ best practices in future … Continue Reading
Effective September 1, 2009, companies subject to FTC jurisdiction will not be able to make interstate prerecorded telemarketing calls to EBR consumers absent the prior express written agreement of the consumer. Effective December 1, 2008, any company that continues to make such calls must comply with new restrictions that will continue even after September 1, 2009 when prior express written consent of the consumer is mandatory.
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On September 4, 2008, in American Bankers Association v. Lockyer, No. 05-17163, 2008 WL 4070308 (9th Cir. Sept. 4, 2008), the Ninth Circuit Court of Appeals revived part of the California Financial Information Privacy Act (“S.B. 1”), allowing consumers to opt-out of certain information-sharing activities between financial institutions and their affiliates. Previously, in the 2005 case … Continue Reading
Section 214 of Fair and Accurate Credit Transactions Act ("FACTA") was enacted to amend the Fair Credit Reporting Act (the "Act") to give consumers the right to restrict certain entities from using certain information received from their affiliates to make solicitations to that consumer unless the consumer has been provided (1) "clear and conspicuous" notice that the consumer's information will be shared for such purposes, and (2) an opportunity to opt out of having such information shared for such purposes.
On November 7, 2007, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Office of Thrift Supervision and the National Credit Union Administration issued a joint final rule (along with the Federal Trade Commission (FTC) and the Securities and Exchange Commission(SEC), which separately adopted and proposed, respectively, similar regulations) under the amended Act (the "Affiliate Marketing Rule" or "Final Rule," codified at 12 C.F.R. Parts 41, 222, 334, 571 and 717) governing the use of specific consumer information obtained by covered entities from their affiliates for certain marketing purposes.
The Affiliate Marketing Rule became effective on January 1, 2008, and compliance by covered entities is required by October 1, 2008.
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Many B2C companies are beginning to explore marketing to consumers’ wireless devices using text messaging (“SMS,” or “short message service”) and MMS messaging (“Multi-media Messaging Service”). They may even target their promotions based on where the recipient is physically located using the wireless device’s GPS technology. They also may target their promotions to teens and tweens. What legal issues should … Continue Reading
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