GNYADA 2019 Membership Directory & Services Guide

penalty figure is an “up to” amount that courts can adjust, rather than a fixed amount. Numerous class actions have been filed under the TCPA in large part because of the absence of any cap on class action damages. As a practical matter, the ability to enforce extends to the called party. The “called party” means the current phone subscriber or the customary user of the cell phone. As a result, you can be held strictly liable for a call to a wrong number, regardless of whether the original subscriber had previously provided his or her consent. The FCC had established a one-call safe harbor for unintended calls to reassigned numbers, but the same March 2018 federal appellate court decision that vacated the FCC’s “auto dialer” guidance also set aside the FCC’s handling of TCPA liability for improper calls to reassigned numbers. At this time, such liability has been suspended, pending new FCC guidance. The TCPA can also be enforced administratively by federal agencies. Federal agencies have also brought cases alleging unfair, deceptive, or abusive acts or practices in the context of a telemarketing campaign. Among other things, when telemarketing products, a dealer must state promptly the purpose of the call; clearly disclose, prior to purchase, the cost of the product; disclose prior to purchase all material conditions, benefits, and restrictions relating to the product; disclose clearly that the purchase of the product is voluntary and not required; make all legally required disclosures in a clear manner and at reasonable speed and cadence so the consumer can understand them; and after disclosures are read, require the customer to acknowledge the purchase is voluntary and that the customer affirmatively requests or consents to purchase the product. If the product has a cancellation or refund policy, the dealer must disclose the policy and give the phone number to cancel and the time in which to get a refund. The customer’s purchase and means of payment must also be disclosed and confirmed. If paying by credit card, the customer must give the full credit card number for payment to the sales representative. States also have laws regulating telemarketing. In addition to the existence of several state-specific do-not-call lists, some states give consumers three-day cancellation rights for telemarketing sales and a number of states have tougher telemarketing sales rules than the FTC and FCC (examples include Texas, New Jersey, Arizona, Louisiana, and Wyoming). Since the rules are very complicated, you should get advice from your counsel on your specific practices. Email. The federal CAN-SPAM Act of 2003 requires that each commercial email conspicuously give the consumer a way to opt out of receiving further commercial messages. Senders must honor opt-out requests within 10 business days. Commercial emails also must contain the sender’s address, a notification that the message is an advertisement, and other specific language. CAN-SPAM prohibits misleading subject lines and “from” line information. The prohibition on misleading “from” lines also applies to “transactional or relationship” messages: emails that relate to an existing business relationship between the sender and recipient and that do not market products or services, such as messages informing a customer of a warranty or recall notice. Your counsel can advise you about state email laws and the interplay between federal and state email standards. Fax. The Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005, restricts the ability to send fax advertisements. Unsolicited fax advertisements are prohibited unless they are based on an established business relationship between the parties. (In addition, fax advertisements that are based on the recipient’s prior express invitation or permission are not “unsolicited” and are therefore permitted.) Permitted fax advertisements are subject to regulation by the TCPA. The general rules are that the first page of the fax advertisement must include a clear and conspicuous notice providing instructions for opting out of future

2019 membership directory & services guide / hot topics

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