The Telephone Consumer Protection Act of 1991: Adapting Consumer Protection to Changing Technology, 26 Loy

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Loyola Consumer Law Review

Volume 26 | Issue 3 Article 2

2014 The elephoneT Consumer Protection Act of 1991: Adapting Consumer Protection to Changing Technology Spencer Weber Waller Prof. & Dir. Inst. for Consumer Antitrust Studies, Loyola Univ. Chicago, Chicago, IL, [email protected]

Daniel B. Heidtke Attorney, Hafterlaw LLC, Las Vegas, NV.

Jessica Stewart

Follow this and additional works at: http://lawecommons.luc.edu/lclr Part of the Consumer Protection Law Commons

Recommended Citation Spencer W. Waller , Daniel B. Heidtke & Jessica Stewart The Telephone Consumer Protection Act of 1991: Adapting Consumer Protection to Changing Technology, 26 Loy. Consumer L. Rev. 343 (2014). Available at: http://lawecommons.luc.edu/lclr/vol26/iss3/2

This Feature Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Review by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. 35126-lcr_26-3 Sheet No. 5 Side A 06/02/2014 15:10:17 PM

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DAPTING ing a consumer- A

ONSUMER

s for cy pres distributions distributions pres s for cy C 1991: s enforcement for the benefit Judge Morton Denlow which ECHNOLOGY reported on our web site have al- have site our web on reported ROTECTION TO 343 T P its mission of support OREWORD CT OF e United States District Court for the F A Daniel B. Heidtke & Jessica Stewart Spencer Weber Waller ELEPHONE ELEPHONE T HANGING HANGING ONSUMER C HE C T The Institute for Consumer Antitrust Studies is proud to is proud to Studies Antitrust Consumer for Institute The We thank Judge Hart and counsel for the parties for the the for parties the for and counsel Hart Judge thank We J.D. 2012, Loyola University Chicago School of Law. Law. of School Chicago University Loyola J.D. 2012, Attorney, Hafterlaw LLC, Las Vegas, NV, J.D. 2012, Loyola University University Loyola J.D. 2012, NV, Vegas, Las LLC, Hafterlaw Attorney, his study of the Telephone Consumer Protection Act Act Protection Consumer Telephone the of his study distribution pres a cy through possible (“TCPA”) was made Professor and Director, Institute for Consumer Antitrust Studies, Loyola Loyola Studies, Antitrust Consumer for Institute Director, and Professor

ROTECTION M K P

T from a class action in th Northern District of Illinois under the supervision of Senior Senior of supervision the under Illinois of District Northern Judge William Hart and Magistrate of the settlement TCPA. Following the the under claims involved Hart sought proposal litigation, Judge Waller Article4.docx (Do Delete)Not 5/21/2014 that meet existing legal standards. have been one groups of the pres selecteda cy for distribution. theThis most recentpres is in distributions a series of cy that the These distribu- in 1994. founding Institute has received since its of funds sources tions and other to Institute serve the lowed and protection consumer of study the through economy friendly antitrust law and promoting vigorou of ordinary consumers. of ordinary consumers. comprehensive first the undertake to opportunity and the funds study of the TCPA since its passage in 1991. Since that time, the Chicago School of Law. of Law. School Chicago University Chicago School of Law. Law. of School Chicago University C Y 35126-lcr_26-3 Sheet No. 5 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 5 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 5 Side B 06/02/2014 15:10:17 M K PM

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Institute. Institute. Vol. 26:3 Vol. work of the ws during the research be enforced in an era of an era of be enforced in il he entered private practice practice private entered il he Margulis, James Morsch, Dee also a 2012 graduate of the law responsibility of the Institute. of the Institute. responsibility ed their time for intervie Loyola Consumer Law Review Law Loyola Consumer viewed and commented on drafts of the report, or viewed and commented on drafts

We would like to thank the following individuals who who individuals following the to thank like would We The principal investigator for this report was Daniel B. was Daniel for this report investigator principal The publi- and programs, projects, of many one is This report school. All errors remain the Facebook page, on our or [email protected] us at reach You can https://www.facebook.com/groups/104637465017/. in April 2013. The final drafting and editing of the report was of the report was editing drafting and final 2013. The in April undertaken by Jessica Stewart, generously provid new technology, most notably ubiquitous cell phones, emails, and emails, and cell phones, ubiquitous most notably new technology, of analyz- challenge the undertake we In this report, fax servers. technology effectivenessing the TCPA’s of this changing light in vulnerable them make and consumers, empower both can which in- and defraud to schemes sophisticated increasingly and new to and amendments changes propose further privacy. We vasions of to thestatute, rules, its and enforcement to keep the TCPA a relevant and effective means of protecting consumers. Chicago School of of Loyola University Heidtke, a 2012 graduate Consumer for Institute the of Fellow Student a former Law and Antitrust Studies, workedwho full-time on the research, inter- unt report drafting of the and views, of the report, re C. John Beard, Stephen support: research additional provided Jeffery Cross, Daniel Julie Clark, Brown, Nicholas Connon, Max T. Holcombe, Justin Friedman, David Ian Fisher, Edelman, Huffman, David Leibowitz, Max Worker. and Danny Pridgen, Ali Saeed, Henry A. Turner, invite We Studies. Antitrust for Consumer Institute of the cations you to sample the full work of the Institute on our web site of working variety you will find a where www.luc.edu/antitrust developments, on recent views and news papers, white papers, fellowships, as well as and research information on our student print, audio, andvideoof recent Institute programs. We welcome all the report and your comments on this TCPA has been amended, interpreted, and applied in literally literally in and applied interpreted, amended, has been TCPA era of fax machines in an and limited Enacted thousands of cases. TCPA now must the cell phone usage, Waller Article4.docx (Do Delete)Not 344 5/21/2014 35126-lcr_26-3 Sheet No. 5 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 5 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 6 Side A 06/02/2014 15:10:17 PM

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t Schemes are Inefficient .. 368 .. t Schemes are Inefficient ONTENTS ss Relationship Exemption ss Relationship Exemption C ABLE OF T Unwanted Telemarketing Calls ...... 378 ...... Unwanted Telemarketing Calls 380 ...... Junk Fax Complaints 383 ...... Decline in Fax Machine Use Telemarketing Act ...... 359 360 Act ...... 363 ...... Interpretations of the TCPA 364 ...... Expansion to Debt Collection Registry ...... 369 Registry ...... 370 ...... Is Not Informed Consent 1. The TCPA and Cellular Phone Calls ...... 366 ...... Calls 1. The TCPA and Cellular Phone 367 2. The TCPA and Text Messages...... 375 ... 1. The Dependence on Private Attorney Generals Not Call Registry Reduced2. The National Do 3. Increased Government Enforcement Reduced the TCPA the Despite of Importance 1. Continued 384 ...... TCPA 2. Cell Phones and the 1. Regulating the use of “Robocalls” ...... 355 ...... use of “Robocalls” 1. Regulating the 357 ...... Fax Advertisements 2. Banning Unsolicited 358 ...... Right3. The Private of Action 371 ...... 1. The Do-Not-Call Registry EBR 371 ...... 2. The Junk Fax EBR The Telephone Consumer Protection Act of 1991 Consumer The Telephone A. Congress Tackles Telemarketing Fraud: the A. Congress Tackles Telemarketing Fraud: the B. Congress Confronts E-Mail Spam: the CAN-SPAM A. Targeting the Use of Technology: Judicial B. Targeting the Use of Technology: TCPA’s 365 ...... in Technology C. Addressing Advances A. Company Specific Opt-Ou 374 ...... A. The TCPA’s Relative Success 383 ...... B. Changing Technology A. Calls for Federal Regulation Begin to Grow ...... 354 ...... RegulationA. Calls for Federal to Grow Begin 355 ...... The TCPAB. The Result: the National Do-Not-CallB. Empowering Consumers: C. The Established Busine M K II. Analogous Federal Regulation and TCPA Overlap ...... 359 TCPA Overlap Regulation and II. Analogous Federal ...... 363 III. Adaptation of the TCPA ...... 367 TimeIV. Lessons Learned Over ...... 374 V. The TCPA’s Current Impact Executive Summary ...... 347 Executive Summary ...... 350 Introduction ...... 352 TCPAI. History of the Waller Article4.docx (Do Delete)Not 2014 5/21/2014 C Y 35126-lcr_26-3 Sheet No. 6 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 6 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 6 Side B 06/02/2014 15:10:17 M K PM

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Loyola Consumer Law Review Law Loyola Consumer Bring More Uniformity ...... 405 ...... Bring More Uniformity Regulatory Confusion from Reduce Could Help ...... Overlap 409 Required ...... 414 415 ...... Junk Fax EBR 416 Broadcasters ...... Right of Action and Statutory Damages 418 ...... Provision ...... Manipulation 423 Requirements ...... Requirements ...... 397 Authority and Increasing Incentive ...... 403 ...... Incentive Authority and Increasing Increasingly Inadequate...... 390 Increasingly Inadequate...... 1. Increased Litigation in Federal Courts Should Should Federal Courts in 1. Increased Litigation 407 2. More FCC Rulemaking is Necessary...... Understanding of and Memoranda Rules 3. Clearer 413 ...... 1. Protect Exceptions to BanCell Phones: No Express Consent 2. Protect Cell Phones: Prior 3. Increasing Clarity: a TimePlacing Limit on the 4. Increase Effectiveness: Targeting Junk Fax Private Preserving to Criticism: 5. Responding to New Practices: Caller 6. Responding ID 1. Growing Concern Over Text Message Spam...... 395 Text Message Spam...... Over 1. Growing Concern “Identification” Reconsider Should 2. Congress A. Increase Government Enforcement of the TCPA ...... 401 ...... A. Increase Government of Enforcement the TCPA B. AidingEnforcement FCC Efforts: Expanding 404 ...... C. Increase Uniformity of Application 413 ...... D. Amending the TCPA A. New Types of TCPA Violators ...... 388 ...... of TCPAA. New Types Violators B. Enforcement and Application of the TCPA is 394 ...... Technology Require Adaptation C. Advances in

VII. Addressing Modern Issues Impacting the TCPA ...... 400 TCPA Impacting the Issues Modern VII. Addressing ...... 424 Conclusion VI. Three Issues Affecting the Effectiveness of the TCPA ...... 387 Issues AffectingVI. Three the Effectiveness of theTCPA Waller Article4.docx (Do Delete)Not 346 5/21/2014 35126-lcr_26-3 Sheet No. 6 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 6 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 7 Side A 06/02/2014 15:10:17

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UMMARY TCPA was to regulate certain practice of sendingunsolicited S the TCPA originally banned the the banned the TCPA originally piece of technologythe known as XECUTIVE E ting calls and advertisements. Calls for action for action Calls advertisements. ting calls and The Telephone Consumer Protection Act of 1991 Consumer The Telephone Since 1991, Congress has enacted otherSince 1991, Congress has enacted statutes torelevant The original purpose of the purpose of The original Consumers and businesses became overwhelmed with un- with overwhelmed became businesses and Consumers Con- Telephone of is the focus report this primary The In the late 1980s, spurred by advances in technology, the the in technology, by advances spurred In the late 1980s, 47 U.S.C. § 227 (2011). (2011). § 227 47 U.S.C. 1 M K The TCPA has since been expanded and adapted by administra- adapted and expanded been TCPA has since The amendment. and congressional tive rule, judicial interpretation, the discussion of the TCPA. Despite common justifications and regu- be media would that certain determined Congress purposes, lated differently. For example, was for the ban fax.” The justification practice of sending “junk that the practice shifted the cost of advertising from the advertiser to the recipient. However, the and potentially invasive, are abusive, uses of technology that dangerous. The TCPA effectively regulates these abuses by prohibiting certain technologies altogether, rather than focusing specifically on the content of the messages being delivered. The expansion of the TCPA into areas outsidetelemarketing of and new original purpose. technologies over the years is consistent with its commercial e-mail, which also shifts the cost of advertising from of advertising also shifts the cost e-mail, which commercial the advertiser to thenot recipient, banned was but insteadwas requirements. “identification” certain with regulated facsimile machine (“fax machine”). machine,With the mar- fax advertisements unsolicited of thousands of tens send could keters nation. the across to consumers week (“junk fax”) each solicited telemarke inter- the reach not could but laws, enacted States louder. grew ten and debating reviewing After of telemarketers. practices state different pieces of legislation, Congress enacted the Telephone Consumer Protection Act of 1991 (“TCPA”). sumer Protection Act of out of abusive 1991. The TCPA was born in by advances telemarketing practices, intrusive made more the TCPA imposed restrictions on the use technology. Originally, and fax. by telephone advertising for unsolicited of telephones telemarketing industry began aggressively seeking out consumers out consumers seeking aggressively began industry telemarketing using machines began Companies of thousands. hundreds by the that automatically dialed consumers and delivered prerecorded Marketers also messages (“robocalls”). of another advantage took available new and increasingly Waller Article4.docx (Do Delete)Not 2014 5/21/2014 C Y 35126-lcr_26-3 Sheet No. 7 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 7 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 7 Side B 06/02/2014 15:10:17

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e traditional ments can be Vol. 26:3 Vol. Although th 2 the following recommendations: fications and improve FTC Hangs Up On Robocalls from ‘Rachel,’ Loyola Consumer Law Review Law Loyola Consumer Increase government enforcement of the TCPA by in- larger a with General Attorneys State providing centive to bring TCPA cases, and empowering the the TCPA; FTC to bring suit under of the TCPA by application Increase uniformity of FCC rule- and quicker frequent more encouraging procedures; making x x In order for the TCPA to continue to remain relevant go- relevant remain to continue TCPA to the for In order Private parties responsible are largely for the enforcement of a number and again rapidly changing Technology is In order for the TCPA to stay relevantIn order for the TCPA to stay after more than , Nov. 1, 2012, http://articles.latimes.com/2012/nov/01/business/la-fi-tn- , Nov. Laura J. Nelson, 2 IMES T made. We recommend improving government enforcement efforts and increasing the uniformity of interpreting thestatute. The FTC’s recent contest for a technical is to robocalls solution types to other respect with followed and should be commendable, messages commercial to unsolicited exposed currently of media such as text messages and e-mail. report makes ing forward, this of the TCPA, and have done so primarily through the class action action class the so primarily through done TCPA, and have of the of the because criticism this has drawn some While mechanism. the threat statutory damages, of class action has of high provision to Historically the gov- violators. deterrent a significant provided ernment has enforced only the to a limited TCPA extent,yet the it conduct the reducing successful in relatively statute has been was enacted to regulate. Thetrends are emerging. of entities that number are operating in TCPA are of the us- growing, and they are intentional disregard evade detection and enforcement.ing technology to help Accord- of about 59% Commission (“FTC”), ing to the Federal Trade calls phone the because or blocked traced be cannot spam phone are routed through “a web of automatic dialers, caller ID spoofing protocols.” and voice-over-Internet Waller Article4.docx (Do Delete)Not 348 5/21/2014 scheme of TCPA enforcement,reliance on with the its strong private right of action, has in the been successful past, two main issues are becoming clear. The privateactionin right is limited of against, and deterring the actions of, both incentivizing lawsuits its slow by is limited FCC enforcement violators; and intentional process. twenty years, certain modi ftc-robocalls-credit-card-services-20121101. ftc-robocalls-credit-card-services-20121101. 35126-lcr_26-3 Sheet No. 7 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 7 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 8 Side A 06/02/2014 15:10:17 PM

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Continue to protect cell phones by requiring prior prior by requiring cell phones protect to Continue express consent for any communication (call or text) made to a cell phone; Fax Established Junk on the limit a time Place Business Relationship; Create incentives for fax broadcasting companies to determinewhether the faxes they are sending on are in violation of the TCPA;behalf of clients Rebuff efforts to remove or otherwise modify the action; and private right of restrictions on entities that enablePlace additional ID manipulation. caller x x x x x The Telephone Consumer Protection Act of 1991 Consumer The Telephone M K Waller Article4.docx (Do Delete)Not 2014 5/21/2014 C Y 35126-lcr_26-3 Sheet No. 8 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 8 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 8 Side B 06/02/2014 15:10:17 M K PM

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3 Comments of U.S.

, Vol. 26:3 Vol. 1991 U.S.C.C.A.N. 1968, 1968, U.S.C.C.A.N. 1991

OMMERCE C increasing number of consum- number increasing reprinted in reprinted of telemarketing was warranted, and was warranted, and of telemarketing HAMBER OF C

NTRODUCTION I Loyola Consumer Law Review Law Loyola Consumer

4 . 102-178, at 1-2 (1991) (1991) at 1-2 . 102-178, O N

. EP R Despite the clear focus on telemarketing practices during and supplemented adapted, TCPA was amended, The The TCPA has been relatively successful over the past Three main issues will impact the TCPA going forward. In the late 1980s, Congress considered legislation aimed at considered legislation Congress In the late 1980s, The impetus for the TCPA was the “onslaught of telemar-

William L. Kovacs, U.S. S. 3 4

er complaints . . . . The growth of consumer complaints about . . . er complaints these ha[d] calls two sources: the increasing numbertelemar- of and the calls, telephone placing of business in the firms keting more calls phone automated which makes advance of technology cost-effective.” Senate found that “[t]he use of automated equipment to engage in to engage equipment of automated use found that “[t]he Senate an [wa]s generating telemarketing the debate over the TCPA, the statute is more than just telemar- by a determina- brought about keting regulation. The TCPA was in ac- an increase allowed had technology in tion that advances cess to consumers. Whether the individual was a telemarketer or technology, determined to regulate intrusive not, Congress was of sending unsolicited practice and the autodialers specifically, fax advertisements. in practices new in technology and over time to address advances TCPA is more The applied. was being that technology which to areas applied is rightfully law” and fax “junk than a simple outside of the telemarketing industry. two decades. The Do-Not-Call Registry, an offshoot of the a calls. In addition, telemarketing unwanted TCPA, has reduced de- TCPA the of enforcement government stepped-up of period creased the number of unsolicited fax advertisement complaints. stemming the tide of intrusive telemarketing practices. The de- the Telephone action culminated in appropriate bate over the Consumer Protection of Act 1991 (TCPA). This analyzes report of the TCPA and the the history and discusses statute role of the of expansion the whether examines report The times. in modern the statute to areas outside Waller Article4.docx (Do Delete)Not 350 5/21/2014 to current issues might best respond courts and the how Congress and problems. homes.” of American privacy the .] invading . [. calls keting 1970 (1991). 1970 (1991). Chamber of Commerce, CG Docket No. 02-278 at 5 (Aug. 30, 2012). 2012). 30, 5 (Aug. at 02-278 No. CG Docket of Commerce, Chamber 35126-lcr_26-3 Sheet No. 8 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 8 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 9 Side A 06/02/2014 15:10:17 PM

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351 351 creased government en- creased government lating traditional abuses, informed consent for con- s in the legislationand slow inter- TCPA claims, the statute will be the statute will be TCPA claims, Federal Communications Commission The Telephone Consumer Protection Act of 1991 Consumer The Telephone Second, it is important that the TCPA remain in place and theFinally, TCPA must be adapted to better respond to these issues are balanced The principal goals of addressing This report sets forth several suggestions and recommen- suggestions and several This report sets forth To address efficiency the of regu The TCPA also must be adapted to address new technolo- new to address adapted TCPA also must be The M K First, new types of TCPAFirst, new that intention- namely those violators, the TCPA, are emergingally disregard at rate. an increasing on the dependence traditional the challenge will parties These action. As a private right of result, in forcement is necessary to target these intentional violators. that it is effectively enforced to ensure that the intrusive practices do not return. the legislation that brought about on not solely focused The issue is in technology. new advances abusive the use of technology in a potentially to reach consumers that will legislation focus on crafting clear must fashion. Congress allow entities to effectively communicate with consumers using new advances in technology. and regulation, clear interpretation, sumers. A number of strategies have been employed by Congress by Congress employed been have of strategies A number sumers. to solve the problem of intrusive access to consumers, but those in- clarity, and strategies have not always provided balance, formed consent. Over time, gap (FCC) have created confusion with respect to the legality of cer- conduct. tain de- the TCPA violators, of types new the To address dations. A more reduced. be must general attorneys private on pendence targeted focus on the actual technologies being used by these individuals entities and is also necessary the to target source of TCPA the For example, cause. the with along TCPA violations regulation, additional with or supplemented amended, be should the that violate for hiring entities liable parties third holds which TCPA even when those hired-violators offshore. are located Waller Article4.docx (Do Delete)Not 2014 5/21/2014 pretive decisions by the granted authori- be the Federal Trade Commission (FTC) should ty to bring TCPA enforcement actions andState Attorneys Gen- re- amount the equal damages to seek to enabled should be eral law. Government current FCC under by the coverable enforcement of the TCPA is necessary, and efforts have current been lacking by The FTC has the FCC. recently shown inter- an Gen- Attorneys State and by giving matters, in TCPA-related est to bring eral a larger incentive more effectively enforced. C Y 35126-lcr_26-3 Sheet No. 9 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 9 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 9 Side B 06/02/2014 15:10:17 , M K PM

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, US gulation to this gulation to this Vol. 26:3 Vol. plementation and plementation and

6 TCPA that the FCC quickly issues issues quickly FCC that the ion of the ion of the and certain statute, ssful at self-re arketers/ (last visited Apr. 24, 2013). visited (last 24, 2013). Apr. arketers/ ul approaches to im ISTORY OF THE H e of the statute to include new areas of regula-

By 1990, over 300,000 telemarketers contacted 5 Loyola Consumer Law Review Law Loyola Consumer I. In the late 1980s, telemarketing calls were becoming calls were becoming telemarketing In the late 1980s, New technology made it easier for telemarketers to reach Part I of of report discusses the history this the TCPA and See Telemarketers Law & Legal Definition Law See Telemarketers Rules and Regulations Implementing the Telephone Consumer Protec- 5 6

cheaper and easier to complete. The telemarketing industry was becoming more competitive andwas expanding rapidly to reach in beginning period a ten-year In possible. as as many consumers telemarketing activities increased from $1 bil- 1981, spending on lion to $60 billion. every day. more than 18 million Americans consumers. Autodialers (also known as robocalls) automatically automatically as robocalls) consumers. Autodialers (also known and numbers, to a list of telephone message a prerecorded deliver predic- These representatives. human for need the remove thus gy. The use of gy. The text message phones and cell has advertising is important It grown exponentially. clear guidelines that for balanced allow and clear regulation. In- have been succe dustry members Waller Article4.docx (Do Delete)Not 352 a As a result, apparent. is for abuse potential the point, but of regulation consent should actual, informed requiring scheme because advertisements unsolicited sending to prior obtained be an individ- reaching of and safety special concerns of the privacy 5/21/2014 phone. cellular or her ual on his statutes that Part II reviews other relevant analyzes its structure. affect the operation of Partthe TCPA. III focuses on the implementation of the TCPA and the judicialinterpretation that broadened the scop lessons the discusses IV Part technologies. evolving tion and regarding TCPA the of implementation the throughout learned successful and unsuccessf consumer protection legislation. Part V considers the overall impact of the Part VI addresses TCPA, while three main issues that poor enforcement today: intentional violators, hinder its success so- VII provides changing technology. Part processes, and rapidly lutions to these obstacles in the form of increased government en- a moreforcement, uniform applicat amendments focused on new technology and strengthening the private right of action. http://definitions.uslegal.com/t/telem

tion Act of 1991, 18 F.C.C. Rcd. 14014 (July 3, 2003). 3, 2003). (July 14014 Rcd. F.C.C. 18 1991, Act of tion 35126-lcr_26-3 Sheet No. 9 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 9 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 10 Side A 06/02/2014 15:10:17 , PM —

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(hangs (hangs CIENCE CIENCE S 353 353 The technol- abandons 7 HRISTIAN , C Kaufmanv. ACS Sys., The fax machine is

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12 see also see to consumers by businesses (“For example, when we call residences

The telemarketing broadcast- and fax Predictive Dialing for Outbound Telephone Call 13 66, 67 (1999) 66, Will feds tackle telemarketers? . 102–317, at 10 (1991); 10 (1991); . 102–317, at . 102–317, at 10 (1991). at 10 . (1991). 102–317, experienced by consumers. O nd Finance of the Committee on Energy and nd Finance of the Committee Commerce O 8 , with caller the paying for telephone charges and wasting N N

. . EP EP NTERFACES R

Telemarketing Practices: Hearing the SubcommitteeBefore on Tel- Practices: Telemarketing The Telephone Consumer Protection Act of 1991 Consumer The Telephone Seth Stern,

(Apr. 15, 2002), http://www.csmonitor.com/2002/0415/p16s01- 15, 2002), (Apr. at 66-67 (“Computer-based outbound telephone dialing systems . . . . . at 66-67. (“Computer-based outbound telephone dialing systems at 67 (“If all we wanted was to keep the representatives as busy as as busy as representatives the to keep was wanted we all 67 (“If at 29 I A relatively new and increasingly available piece of tech- By 1991, telemarketingcalls were generating about $435 such a call See See Id. Id. H.R. H.R. R

Douglas A. Samuelson, 12 13 8 9 10 11 7 ONITOR M K wmcn.html. wmcn.html. M tive dialers were developed to “find better pacing (scheduling of of (scheduling pacing better “find to developed were dialers tive on the propor- data by collecting and analyzing dialing attempts) thattion of call attempts from of time answered, durations are of service.” and durations answer, call initiation to became a primary tool for business. quickly Waller Article4.docx (Do Delete)Not 2014 both to minimize ogy was designed telemarketers the time that of amount the and conversations between waiting spend must calls abandoned 5/21/2014 access greater nology also enabled an effective tool because it automatically accepts, processes, and prints each message sent. By 1991, more than of 30 billion pages via fax each year. information were sent annually. sales in billion and marketersThe alike. telephone facsimile machine (the fax the mid-1980s “office oddity” during an machine)—labeled Inc., 110 Cal. App. 4th 886, 890-94, 2 Cal. Rptr. 3d 296, 300-03 (2003) (detail- (2003) 300-03 296, 3d Rptr. 2 Cal. 890-94, 886, 4th App. 110 Cal. Inc., ecommunications a House of Representatives, 101st Cong. 101-43 (1989) (Sales of fax machines machines of fax (Sales (1989) 101-43 Cong. 101st of Representatives, House sold, fax machines 192,000 total just were 1986, there In exponentially. grew and in 1987: nearly a million 500,000, fax machines almost the following year: year.). one in sold on weekdays, the proportion of call attempts answered typically quadruples time over change calls also of completed Durations P.M. 6:00 to 5:00 P.M. from for many applications:mem-a specific for example, if the calls are directed at 5:00 at at than home 6:00 P.M. be to likely more is who household the of ber P.M.”). possible, we could simply dial every available time. This, however, line all the would result in large numbers of abandoned calls.”). dial automaticallyand connect thosesales who answer to or collection rep- live no when answers someone Sometimes results. other logging while resentatives, representative is available. Typically the system immediately up on) representatives’time and—more important—with the answering party suffer- ing a nuisance.”)(emphasis added). Centers,

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consumers consumers For exam- 19 17 eceiving a letter Similarly, “as Similarly, “as 18 Vol. 26:3 Vol. , May 23, 1989, at C3). C3). at 23, 1989, May , ertisements per week” OST in 1991 U.S.C.C.A.N. 1968, 1968, 1991 U.S.C.C.A.N. in P

. ing and fax advertisements ing and fax advertisements One company advertised on ASH are analogous to r 14 The JunkAttack: Fax Why Maryland st faxes to millions of customers st faxes to millions reprinted , W in the form of ink, paper, and in the form of ink, paper, and . H5818-02, (daily ed. July 30, 1990) (statement of of (statement 1990) 30, July ed. (daily . H5818-02, EC . 109-76, at 3 (2005) (“Industry comments maintained maintained comments (“Industry 3 (2005) at . 109-76, R

. O Loyola Consumer Law Review Law Loyola Consumer . 102-317, at 6-7 (1991). (1991). at 6-7 . 102-317, N O

. 102-178, at 1 (1991) at 1 (1991) . 102-178, . N ONG

O . EP N

R EP .

A. Calls for Federal Regulation Begin to GrowFederal Regulation Begin A. Calls for S. 136 C 136 EP R

In response to consumer complaints, over forty statesIn response to consumer Advertising through telemarket Advertising through the Tele- about brought Widespread telemarketing abuses 15 See See When marketing is indiscriminately delivered to thousands Covington Research, Inc., No. CIV.A. 01- & Burling v. Int’l Mktg. (2011). § 227 47 U.S.C. S. H.R.

16 16 17 18 19 14 15

could do little to stop these so called junk faxes from using up using up from faxes junk so called these stop to little do could toner. and ink, paper, their placed regulationson theuse of autodialers and prerecorded mes-

or even millions of individuals, these minor costs invariably begin begin invariably minor costs these millions of individuals, or even to mount. ofphone Consumer Protection Act 1991 (“TCPA”). telemarket- prevent not] [could number unlisted an “[h]aving ple, randomly or sequentially.” numbers that call ers unsolicited fax adv tens of thousands of to sent country, fax machines throughout the were ing industries were expanding at a rapid pace. Sending fax adver- Sending expandingat a rapid pace. were ing industries most cost- of the customers was one tisements to potential effective methods of advertisement. However, alike. businesses and consumers to benefits provide this process often comes at acost. Unlike mail advertisements wherethe cost is born by the marketer, sending unsolicitedfaxes came at a cost theto recipient blocked phone lines. Receiving an unsolicited fax has been com- postage- with the mail through advertisements receiving to pared due. Waller Article4.docx (Do Delete)Not 354 it could “[b]roadca its website that 5/21/2014 daily [. . .],” using its “database that using .],” exceeds 30 million fax num- . daily [. bers.” that ‘faxing is a cost-effective way to reach customers, particularly for small for small particularly customers, way to reach a cost-effective is ‘faxing that 0004360, 2003 WL 21384825, at *3 (D.C. Super. Ct. Apr. 17, 2003) (detailing 17, 2003) Ct. Apr. (D.C. Super. at *3 21384825, WL 2003 0004360, of Fax.com). practices the 1970 (1991). 1970 (1991). Rep. Markey discussing how junk faxes with postage-due)(quoting Jerry Knight, business for whom faxing is a cheaper way to advertise.”). advertise.”). way to a cheaper is faxing whom for business May Outlaw Unsolicited Advertisements Unsolicited Outlaw May 35126-lcr_26-3 Sheet No. 10 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 10 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 11 Side A 06/02/2014 15:10:17 PM

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24 25 355 355 Texas even 20 Unfortunately, Unfortunately, rstate commerce 21 1991 U.S.C.C.A.N. 1968, 1968, U.S.C.C.A.N. 1991 1991 U.S.C.C.A.N. 1968, 1968, U.S.C.C.A.N. 1991 in 1991 U.S.C.C.A.N. 1968, 1968, 1991 U.S.C.C.A.N. in 184 S.W. 3d at 710. 710. at 3d 184 S.W.

reprinted reprinted in reprinted reprinted in reprinted to facilitate inte supplement their restrictions on on restrictions their supplement and by the late 1980s “[m]any 22 B. The Result: The TCPA The TCPA B. The Result: In addition, the state In addition, different, andlaws had The Chair King, Inc. v. GTE Mobilenet of Houston, Inc., Inc., Houston, of v. GTE Inc. Mobilenet King, The Chair

The Chair King, Inc., 23 Phillips Randolph v. Adler Weiner Chicago,Research 526 . 102-178, at 3 (1991), 3 (1991), . 102-178, at 1 (1991), at . 102-178, . 102-178, at 1 (1991), 1 (1991), at . 102-178, 1. Regulating the use of “Robocalls” 1. Regulating the use of “Robocalls” O O O N N N

. . . citing citing see also see also see

EP EP EP The Chair King, Inc., 184 S.W. 3d at 710. 710. at 3d 184 S.W. Inc., King, Chair The The Telephone Consumer Protection Act of 1991 Consumer The Telephone 26

R R R

At the heart of the TCPA was an to regulate: aim (1) the One type of technology regulated by the TCPA was the In 1991, Congress stepped in to address “[v]oluminous to address “[v]oluminous In 1991, Congress stepped in See Id. S. 744 (2012). Ct. 740, 132 S. LLC, Services, Financial Arrow v. Mims 774 263 767, Inc., P.3d Grp., Taranto v. Physical Therapy Critchfield S. S. 21 22 23 24 25 26 20 M K 1970 (1991). 1970 (1991). byrestricting certain uses of facsimile machines and automatic dialers.” use of computerized autodialing machinesthat deliver pre- fax unsolicited of sending practice and (2) the messages; recorded statutory framework for advertisements. The TCPA provided a enforcing. and with interpreting FCC was tasked the which or robocallers. Robocallers dialing system, telephone automatic sages, or otherwise restrictedsages, or telemarketing 1992. by C misdemeanor to adver- made it a Class that enacted legislation advertisements. fax unsolicited by sending tise state laws “hadeffect limited [] because States do not juris- have calls” interstate over diction Waller Article4.docx (Do Delete)Not 2014 regulate to for Federal legislation a desire .] expressed . States [. to telemarketing calls interstate intrastate calls.” 5/21/2014 and prohibitions. requirements conflicting, often consumer complaints about abuses of telephone technology – for example, computerized calls dispatched to private homes,” costs.” from shifting their advertising businesses to “prevent the privacy interests of residential TCPA was enacted to “protect au- on unsolicited, restrictions by placing subscribers telephone tomated telephone calls . . . and ( 2011) (Kan.

1968 (1991); 1968 (1991); 1968 (1991); 1968 (1991); Ct. 2006). Sup. (Tex. 710 707, 3d 184 S.W. F. Supp. 2d 851, 852 (N.D. Ill. 2007)). 2007)). Ill. 852 (N.D. 851, 2d Supp. F. C Y 35126-lcr_26-3 Sheet No. 11 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 11 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 11 Side B 06/02/2014 15:10:17 M K PM

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under initiated or connect 27 the call is

Vol. 26:3 Vol. unless While the While initial blanket 28 value communications from from communications value . at § 227(b)(1)(A)(i)-(iii) (“To use of ain “company-specific do-not- ain “company-specific See id the called party’s line within 5 sec- line within the called party’s ); Additionally, “all artificial or prere- “all artificial Additionally, 29 is exempted by rule or order by the [FCC] by the order or by rule exempted is Loyola Consumer Law Review Law Loyola Consumer the FCC provided that any person engaged in engaged in person the FCC provided that any emphasis added emphasis 31

30 at 8757 ¶ 9 (During its initial rulemaking, the FCC concluded at § 227(b)(1)(B) (“to initiate any telephone call to any residential residential to any call telephone any initiate (“to at § 227(b)(1)(B) 47 U.S.C. § 227(b)(1) (2011). (2011). § 227(b)(1) 47 U.S.C. at 8779 ¶ 53. 53. ¶ at 8779 The TCPA required parties using automatic using automatic required TCPA parties dialing sys- The re- the FCC set requirements In the 1992 TCPA Order, In recognition of the importance of consumer choice, and Id. See id. See See id. Rules & Regulations Implementing the Telephone Consumer Protection

29 30 31 27 28 that even though “there are separate privacy concerns associated with [ro- with associated concerns privacy are separate “there though even that bocalls] as opposed to live operator solicitations by recorded (e.g. placed calls message players can be more difficult for the consumer to reject or avoid), the that consumers who do not wish to receive tele- a whole indicates as record phone solicitations would objecteither form to solicitation.”). of telephone solicitation must maint solicitation telephone ban provided a very basic, clear method of regulation, the provi- the regulation, of method clear basic, a very ban provided counterproductive. would prove exemptions sion for tems to “automatically release is notified of the that the calling party’s system onds of the time party’s hang-up.” called must “autodialer” by an delivered messages telephone corded clearly state the identity of the caller at the beginning of the mes- after or during or address number telephone caller’s and the sage the message.” garding company-specific do-not-call lists, placed other technical requirements on telemarketing practices, and created the first ex- relationship business an established with parties for emption (EBR). The action FCC’s attempted to achieve a more balanced choice. consumers with informed regulation, and to provide some consumers that the possibility certain entities, are used to deliver “artificial or prerecorded voice,” or prerecorded “artificial deliver to are used Waller Article4.docx (Do Delete)Not 356 or in random recipients after dialing numbers live operators to of use ban on the a blanket placed Congress order. sequential the recipient’s consent, but granted the without such technology FCC authority to create exemptions. 5/21/2014 Act of 1991, 7 F.C.C. Rcd. 8752, 8778 ¶ 52 (Oct. 16, 1992). 1992). 16, (Oct. ¶ 52 8778 8752, Rcd. F.C.C. 7 Act of 1991,

a message to deliver voice prerecorded or artificial an using line telephone consent express the called party, of without the prior autodialers and prerecorded messages to place calls to an emergency telephone line, to health care facilities, to radio common carrier services, and to services for which the called party is charged for the call, except in emergencies or with the prior express consent called of party”). the for emergency purposes or paragraph (2)(B).”) ( 35126-lcr_26-3 Sheet No. 11 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 11 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 12 Side A 06/02/2014 15:10:17 PM

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357 357 day restrictions as are imposed on e and did not grant the FCC not grant did e and Congress recognized that fax llection Practices Act, and prohibited . Restrictions on robocalls were 38 Originally, “unsolicited adver- Originally, “unsolicited 36 y material advertising the commer- adversely affect the privacy interests adversely affect

37 tions from or limit the effects of the prohibition.”). limit or the effects of from tions

35 However, it did not provide clear guidelines on on guidelines clear provide did not it However, 34 at 8765at ¶ 23 (The FCC determined that “the company-specific at 8771 ¶ 35. ¶ 35. 8771 at

at 8767-68 ¶ 26 (The FCC determined that it was reasonable to reasonable was it that determined FCC 26 (The ¶ at 8767-68 The Order also placed new time limits on acceptable limits on acceptable time also new Order placed The The EBR exemptionwas based on the conclusion that 2. Banning Unsolicited Fax Advertisements Fax Advertisements 2. Banning Unsolicited 32 33 id. id. The Telephone Consumer Protection Act of 1991 Consumer The Telephone

at § 227(a)(4). 227(a)(4). at § Unlike the ban on robocalls, the TCPA’s ban on unsolicit- TCPA’s ban on the robocalls, ban on the Unlike The TCPA made it “unlawful for any person within the the within any person for “unlawful it made TCPA The See See id. Id. See id. See id. (2011). § 227(b)(1)(C) 47 U.S.C. Rules & Regulations Implementing the Telephone Consumer Protection

34 35 36 37 38 32 33 M K

ed fax advertisements was absolut authority to create exemptions. cial availability of any property, goods, or services, which is which is services, or property, goods, of any cial availability in- totransmitted prior express any person without that person’s vitation or permission.” call lists.” with whom a prior business to someone solicitation a telephone not exists does relationship of the recipient. . to use any telephone facsimile machine, com- . . United States a to advertisement an unsolicited to send device or other puter, machine.” facsimile telephone tisement” was defined “an as cost- additional that but intrusive, only not were advertisements a justified communications in phone present not concerns shifting complete ban. hours for telemarketing to protect consumer privacy and prevent prevent and privacy consumer to protect telemarketing hours for nuisance. Waller Article4.docx (Do Delete)Not 2014 actually createdhow an EBR is also reduced. Coupled with the EBR exemption, the TCPA now 5/21/2014 a basis of on the lines phone to residential robocalls permitted or services products the concerning recipient inquiry by the mere of the calling party. imposed limits the FCC acknowledged 87 (The n. at Rcd. 7 F.C.C. Act of 1991, by the TCPA prior to implementing a “junk fax” EBR and stated, “[i]n banning telephone facsimile advertisements, the TCPA leaves the [FCC] without exemp to create discretion do-not-call list alternative is the most effective and efficient means to permit telephone subscribers to avoid unwanted telephone solicitations.”).

subject telemarketers to the same time of debt collectors under the Fair Debt Co party’s called time at the local 9 PM, after and of 8 AM the hour before calls location.). C Y 35126-lcr_26-3 Sheet No. 12 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 12 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 12 Side B 06/02/2014 15:10:17 M K PM

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would re-

44 anism for opt- Vol. 26:3 Vol. ided no mech ided no ). which they can sue an en- can sue an which they Last, the FCC is authorized ll and request that the ll and request entity 42

43 emphasis added emphasis ) (

40 Loyola Consumer Law Review Law Loyola Consumer 3. The Private Right of Action Second, a state attorney general a state attorney Second, (or another marketing calls, Congress prov 41 This exemption was an attempt achieve to bal- a more Rules & Regulations Implementing the Telephone Consumer Pro- 47 U.S.C. § 227(b)(3) (2011). (2011). § 227(b)(3) 47 U.S.C. (2011). § 227(f) 47 U.S.C. (2012). § 503 47 U.S.C. (2011). § 227(b)(3) 47 U.S.C. 39

From the outset, the was designed toTCPA rely on en- Consumers bringing suit under the TCPA may seek dam- seek TCPA may the under suit bringing Consumers In the 1992 TCPAIn the 1992 Order, the determinedFCC that fax The TCPA has three enforcement mechanisms. First, con- See See See See See Id.

41 42 43 44 39 40

to enforce monetary forfeiture penalties against individuals and and to enforce monetary forfeiture individuals penalties against entities that violate the TCPA. forcement by private parties. One of the original sponsors of the “[the private right of action] that TCPA, Senator Hollings, stated damages from receiv- to recover for consumers it easier will make stop sending unsolicited advertisements, the consumer must at must the consumer advertisements, unsolicited sending stop least bear the and cost of the initial to call and time take fax the opt-out of further advertisements—with each entity that sends an advertisement. unwanted official or agency designated by the state) may law- bring a civil a involves a case when relief injunctive and suit for damages “pattern or practice of violations.” actual monetary loss, whichever is ages of $500 per violation or greater. The court has discretion damages,to award the if treble the TCPA. violated knowingly” or defendant “willfully advertisements sent to recipients by entities with which they had an would EBR be “deemed to be invited or permitted by the recipient.” anced approach. like the However, telemarketing exemp- EBR tion, it came at the cost of clarity and shifted costs backthe to the consumer. Despite ability to ca right of actionprivate in sumers have a Waller Article4.docx (Do Delete)Not 358 5/21/2014 tity that has allegedly violated the TCPA for damages and in- relief. junctive ing out of unwanted facsimile advertisements. Such an opt-out list list an opt-out Such advertisements. facsimile of unwanted out ing

the do- 3, (“Unlike 2003) at 8752 ¶ 190 (July Rcd. Act of 1991, 7 F.C.C. tection not-call list for tele quire the recipient to possibly bear the cost of the initial facsimile and inappro- and facsimile initial the of cost the bear to possibly recipient the quire and request sender on the the recipient to contact burden place the priately list.” a “do-not-fax” on inclusion

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359 359 TCPA

50 the Telemarketing Act

monstrate that the statute is be fair to both the consumer both the consumer be fair to an attorney. The amount of amount The attorney. an EGULATION AND Senator Hollings continued, continued, Hollings Senator Crabill v. Trans Union L.L.C. Crabill v. Trans R 45 VERLAP In O 47 EDERAL EDERAL

46 F . S16204-01 (daily ed. Nov. 7, 1991)(statement of Sena- 7, 1991)(statement Nov. ed. (daily . S16204-01 The court further indicated, “[t]he award of award of “[t]he indicated, further The court 49 EC R

. ONG The Telephone Consumer Protection Act of 1991 Consumer The Telephone NALOGOUS NALOGOUS Many critics of TCPA class actions have pointed to Senator Hol- at 662. at 665. The TCPA is supplemented by a number of other laws of other by a number TCPA is supplemented The Somecritics of the TCPA maintain that the statutory early the grow in to continued fraud Telemarketing A Id. Id. Id. Id.

137 C 2001). (7th Cir. 665 662, Union, LLC,F.3d v. Trans 259 Crabill 45 46 47 48 49 50 II. M K A. Congress Tackles Telemarketing Fraud:

lings’ statements and statements the lings’ “individualized” of receiving an unwanted nature call or fax as support for holding that TCPA class actions are inappropriate. per se

and government agencies. Congress’ later efforts leg- later in enacting Congress’ agencies. and government helps de islation similar to the TCPA not solely designed telemarketing to target practices and that not regulated in the same manner. be all technology should ing these computerized calls.” set to is legislation damages in this and the telemarketer.” of a class action the possibility with coupled damages provision While injury.” an a hammer” for “too little of “too strong provides and statutory dam- a private right of action the TCPA provides or no actual little experienced that may have for consumers ages not uncommon. harm, this is consumer- notably statutes, “[m]any noted, Circuit Seventh the for violations award of damages protection statutes, authorize the that cause little measurable so injury thatcost of proving the up right making the damages exceed would themselves, the damages to sue nugatory.” of bounty system, a form also be thought statutory damages could bounty enforceable legally to create is permitted and Congress the provided federal laws, systems for assistance in enforcing an injury of some sort (though bounty is a reward for redressing bounty hunter)[.]” to the an injury not necessarily “[s]mall claims court or “[s]mall claims allow the consumer a similar court would without court the before to appear Waller Article4.docx (Do Delete)Not 2014 5/21/2014

tor Hollings). C Y 35126-lcr_26-3 Sheet No. 13 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 13 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 13 Side B 06/02/2014 15:10:17 M K PM

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ONSUMER ONSUMER , C The Telemar- TATISTICAL TATISTICAL 55 S Vol. 26:3 Vol.

LDERMAN A , 2001

53 d used by marketers (Fax marketing SSOCIATION ICHARD A R

& 505 (2009-2010 ed.) (Defining telemarketing fraud fraud telemarketing (Defining ed.) 505 (2009-2010 AW AW ARKETING L M Loyola Consumer Law Review Law Loyola Consumer RIDGEN 25 (23rd ed. 2001), 2001), ed. (23rd 25 P

IRECT EE 54

D D

The practice of sending unsolicited e-mail advertise- e-mail unsolicited of sending practice The 56 § 310.4(b)(1). § 310.4(b)(1). and the estimated and the of cost such practices $40 billion in hit HE HE As new technology is developed, marketers utilize new The Telemarketing Act is limited in both scope in both and juris- Act is limited Telemarketing The In contrast to the TCPA’s broad prohibitions on the use of of use on the prohibitions TCPA’s broad to the In contrast 57 The response from Congress came The response from in the form of the Tel- 51 Id. See See id. 52 T (2006). § 6102 15 U.S.C. (2003). 310.2(u) § 16 C.F.R. (codified 1995) 23, (Aug. Reg. 43,842 60 Fed. Rule, Sales Telemarketing B. Congress Confronts E-Mail Spam: the CAN-SPAM Act Act CAN-SPAM Spam: the E-Mail Confronts B. Congress 56 57 51 52 53 54 55 OOK ROTECTION AND THE

(outbound) – 12% [2000]; 23% [1999])—outbound telemarketing also (outbound) – 12% [2000]; 23% [1999])—outbound telemarketing de- http://courses.washington.edu/emba532a/2001Factbook.pdf (“Direct Market- (“Direct http://courses.washington.edu/emba532a/2001Factbook.pdf still is catalogs) than (other mail Direct (2001): Marketers by Used Methods ing the number one direct marketing metho ments soon came to be known as “spamming.” “spamming.” ments soon came to be as known B forms of media to reach consumers in the most cost-effective way. In the late 1990s, marketers began to shift their focus from fax to e-mail. P diction. The FTC’s rules apply only to telemarketing, which is is which apply only FTC’s rules to telemarketing, The diction. conducted is which campaign or program, “plan, as any defined to induce the goods or services purchase of by use of one or more tele- than interstate more one involves and which telephones call.” phone 1990s, 1993. (the Act Prevention Abuse and Fraud and Consumer emarketing power to regulate Act”), which gave the FTC “Telemarketing abusive practices by telemarketers. certain technology and flexible application, the Telemarketing Act focuses more particularly specific on conduct and applies only to those parties within the FTC’s jurisdiction. Waller Article4.docx (Do Delete)Not 360 5/21/2014 telephone any “causing behavior to specifically applies Act keting repeat- person in telephone conversation, to ring, or engaging any intent to annoy, abuse or harass any edly or continuously with person.” (2010)). § 310 16 C.F.R. as as: “the deceptive sale of goods or services over or services the telephone.”).of goods deceptive sale as: “the

creased, from 37% (1999), to 32% (2000); the increase: “e-mail to prospects: to prospects: “e-mail increase: the 32% (2000); to 37% (1999), from creased, from 28% to 42% (1999-2000)” and “e-mail to customers: from 28% to 42% from to customers: “e-mail and 28% to 42% (1999-2000)” from to (1999 2000).”). 35126-lcr_26-3 Sheet No. 13 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 13 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 14 Side A 06/02/2014 15:10:17

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EWS 361 361 t commercial e- , CNETN . 1001 (Fall 1997). 1997). (Fall . 1001 CAN-SPAM: A First

had anti-spam laws laws anti-spam had 65 EV R

. . 1 (Fall 2004). 2004). (Fall . 1 UFF ROP P Grant Yang, Yang, Grant

general ban on unsolicited fax unsolicited ban on general . ted the the Assault Controlling , 45 B , 45 ding or fraudulen considering the regulation considering the other of 58 NTELL I ial e-mail and unsolicited bulk e-mail e-mail bulk and unsolicited ial e-mail

see also see J. Unsolicited Commercial E-Mail and the Tele- the and E-Mail Unsolicited Commercial ENT Similar to the Telemarketing Act and its Telemarketing Act Similar to the 62 .-K Ad Groups Lobby for Antispam Law Antispam for Lobby Groups Ad thirty-seven states already thirty-seven states HI 60 , 4 C and deceptive subject headings. 64 This legislation embodied a different regulatory regulatory a different embodied This legislation 61 David E. Sorkin, The Telephone Consumer Protection Act of 1991 Consumer The Telephone CAN-SPAM Act, 15 U.S.C. § 7701 et seq. et seq. § 7701 Act, 15 U.S.C. CAN-SPAM at § 2(b)(2). 2(b)(2). at § transmis- the to initiate person any for unlawful is (“It § 5(a)(1) at at § 5(a)(2) (“It is unlawful for any person to transmission initiate the Unsolicited commerc Unsolicited enac the time Congress By TCPA’s to the In contrast As a result, it is predicated upon identification require- upon identification it is predicated As a result, See Id. Id. Id. See 63

Unless sentUnless to a cell phone and received as a text by that cell phone 2699. Stat. 117 108-187, No. L. Pub. 2003, 16, Act of Dec. Stefanie Olsen, 59 63 64 65 58 59 60 61 62 M K

mail. are the two most common definitions of spam. Although the not e-mail, TCPA does cover of Non-Solicited Pornography and Marketing Act (“CAN- Act and Marketing Pornography of Non-Solicited SPAM”) in 2003, in effect. scheme thanFirst, CAN-SPAM the TCPAways. number in of a does not outright prohibit commercial e-mails. Second, CAN- SPAM recognizes that by certain prac- spam e-mail proliferates TCPA, there the unlike Lastly, conduct. such and prohibits tices right of action. is no private advertisements, CAN-SPAM than prohibits, regulates, rather commercial e-mails. focus on fraudulent and deceptive practices, Congress was primarily concerned with mislea ments and prohibits commercial e-mails that contain header false information Waller Article4.docx (Do Delete)Not 2014 forms of commercial the analyzing useful when advertising is justificationsTCPA as the primary fax for regulating unsolicited are the advertisements e-mail and unsolicited advertisements upon consum- imposed inconvenience and costs prevent to same: ers. 5/21/2014 (Nov. 13, 2003, 2:29 PM), http://news.cnet.com/Ad-groups-lobby-for-antispam- PM), 2:29 13, 2003, (Nov. law/2100-1024_3-5107059.html); message. message. 1991 of Act Protection Consumer phone sion, to a protected of computer, a commercial electronic mail message, or a by, accompanied is or contains, that message, relationship or transactional header information that is materially false or materiallymisleading.”). to a protected computer of a commercial electronic mail message if such person of objective basis on the implied fairly knowledge or knowledge, actual has circumstances, that a subject heading of the message would be likely to mis- lead a recipient, acting reasonably under the circumstances, about a material Step to No-Spam Step to

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EWS Declan McCul- The statute tar- , CNETN Vol. 26:3 Vol. 66 see also and State and Attorneys However, providing providing However, 69 71 rtising products that are that are products rtising and allows for civil actions to to actions civil and allows for 68 Marc Rotenberg, Director, Executive CAN-SPAM: A First Step to No-Spam without regard regula- to existing citing citing ese CAN-SPAM violators utilize tech-

. 1 (Fall 2004) that (indicating § 5(b)(1)(A)(i) 67 ROP P note 61 ( note

. Grant Yang, Yang, Grant Loyola Consumer Law Review Law Loyola Consumer supra NTELL I

at.](i) the electronic mail. § 5(b)(1)(A)(i) address (“[. of the recip- see also also see J. Critics consider the lack of a private right of action a Critics consider the lack of a Yang, Yang, Id.

70 at § 6(a). 6(a). at § 7(a). at § 7(g). at § 7(f). at § CAN-SPAM does not include a private right of action, but action, but of right not include does a private CAN-SPAM Congress recognized that certain practices allowedfor an ENT Id. Id. Id. Id. See See Bush OKs Spam Bill—But Critics Not Convinced Spam Bill—But Critics OKs Bush

68 69 70 71 66 67 .-K HI

lagh, lagh, “would be ‘harvesting’ and §5(b)(1)(A)(ii) “would be ‘dictionary’ attacks.”). fact regarding the contents or subject matter of the message (consistent with with (consistent message of the matter subject or contents the fact regarding the Federal Trade Commission in enforcementof used of section 5 the criteria § 45)”). U.S.C. Act (15 gets both the cause and the source of the e-mail spam problem by regulating the entities responsible for the content (i.e., products or out the spam, sending individuals the advertised), being services who spammers offshore hiring for liable parties third holds and practices. engage in such the FTC, is enforced primarily by Providers Service by Internet brought be General. spammers. significant failure in deterring increase in thespam of amount sent. CAN-SPAM For example, prohibits the practice of harvestingthe Internet, e-mails from which seeks to prevent a spammer building from a large database of e-mail addresses to sent. spam may be which Waller Article4.docx (Do Delete)Not 362 5/21/2014 such a mechanism have may little practical effect. The prolifera- tion of e-mail spam is the a group of intentional vio- result of both lators determined to operate makes en- detection difficult, which nology that makes their tion, and a practice dominated by adve dominated practice tion, and a prescription a without delivered drugs illegal (e.g., prescription th required). Additionally, (Dec. 16, 2003, 7:05 AM), http://news.cnet.com/Bush-OKs-spam-bill—but- 7:05 AM), (Dec. 16, 2003,

Electronic Privacy Information Center, Testimony and Statement of Record of Record Statement and Testimony Center, Information Privacy Electronic 21, (May Transportation and Science on Commerce, Committee the before http://epic.org/privacy/iei/testimony2806.pdf); 2003), ient was obtained using an automated means from an Internet website or pro- or website Internet an from means automated an using obtained was ient online or website such and person, another by operated service online prietary the that a stating notice was obtained, time at the included, address service the operator ofonline such website service or will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages.”); critics-not-convinced/2100-1028_3-5124724.html. critics-not-convinced/2100-1028_3-5124724.html. C 35126-lcr_26-3 Sheet No. 14 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 14 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 15 Side A 06/02/2014 15:10:17

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Since Since 72 ONSUMER ONSUMER 363 363 C

, N ’ as debt collec- SS A AR TCPA B

. Accounting Outsourcing, M A nsating statute explains the terpretation has allowed the the terpretation has allowed

, 59 (Mar. 2009). 2009). (Mar. 59 of concern, such AW

L 1,

, the TCPA the DAPTATION OF THE NTITRUST A A

EVELOPMENTS held, “On its face, the statute prohibits the send- the prohibits statute the face, its “On held, D III. AW L Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359; 359; 109-21, 119 Stat. No. L. Act of 2005, Pub. Prevention Fax Junk The Telephone Consumer Protection Act of 1991 Consumer The Telephone Hinman augmented by numerous FCC rules, and interpreted by interpreted and FCC rules, by numerous augmented Some critics argue that this expansion of the TCPA is in- Some critics argue that this expansion The TCPA creates a rightat common thatnot did exist Judicial interpretations of the TCPA are largely focused As the district court said in ECTION OF Truth in Caller ID Act of 2009, Pub. L. No. 111-331, 124 Stat. 3572. 3572. Stat. 124 111-331, No. L. Pub. ID Act of 2009, Caller in Truth 73 Judicial interpretation of the TCPA as a technology- Judicial interpretation See Accounting Outsourcing, LLC v. Verizon Wireless Pers. Commc’ns., S 74 329 F.Supp.2d 789, 817 (M.D. La. 2004). 2004). La. (M.D. 817 789, 329 F.Supp.2d

72 73 74 M K A. Targeting the Use of Technology: Judicial Interpretations of ROTECTION P regulating, rather than harm-compe forcement by private parties also very difficult. difficult. very also parties by private forcement in- before solution a perfect develop to required not is “Congress stituting measures to incrementally correct a problem.” the TCPACongress introduced in 1991, it has been amended twice, areas new to applied been It has decisions. of judicial thousands 1991, including contemplated in originally not and technology debt collection practices technology. and text messaging to seek and would label the appropriate TCPA as a statute that strictly regulates telemarketing. Yet, the statute makes no men- tion of telemarketers. It was designed to protect the privacy interests of consumers and to respond to advances in technology. Therefore, the expansion of the TCPA into other areas that evoke these same concerns may be justified. law to be for a state protection consumer in order law. Typically, implicated, there must be some showing harm, of fraud, or decep- tion. statute. Such in adaptability of the TCPA to remain effective technology and new when addressing to emerging areas to be applied tion. of technology. For example, the district on regulating the use court in at no reference makes and advertisements fax unsolicited ing of Waller Article4.docx (Do Delete)Not 2014 5/21/2014 L.P., also see C Y 35126-lcr_26-3 Sheet No. 15 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 15 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 15 Side B 06/02/2014 15:10:17

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the 9th Cir- on a successful on a successful : Vol. 26:3 Vol. Soppet Satterfield, Satterfield, 569 F.3d 946 (9th Cir. 2009). 2009). Cir. (9th 946 569 F.3d

In regardless of the content of Consumer Portfolio Serv., Portfolio Consumer 75 h protections have been afforded afforded been have h protections is not dependent is not dependent Collection Technology: TCPA’s Expansion to Debt Technology: TCPA’s Loyola Consumer Law Review Law Loyola Consumer This opened thethe to apply door TCPA to the 80 Similarly, the Arizona Court of Similarly, the Appeals in 76

Satterfield v. Simon & Schuster, Inc., 77 at 727 (“We reject [the] argument that the TCPA only applies to tel- applies TCPA only the that argument [the] reject (“We 727 at , and is not, and limited is that only constitute to calls ‘telephone Customer incurs a debt and does not pay. Creditor hires hires pay. Creditor not does and debt Customer incurs a The typical TCPA-related debt collection situation is most is most situation collection debt TCPA-related typical The Although Congress did not intend to directly regulate debt debt regulate directly to intend not did Congress Although In 2011, the district courtIn 2011, the district in See Id. The court pointed to the FCC’s January 2008 TCPA Order TCPA Order 2008 the FCC’s January to The court pointed Ct. App. (Ariz. 836 831, 121 P.3d Corporation, Mortgage Acacia Joffe v. (N.D. Supp. 2d 723 838 F. Portfolio Inc., Griffith v. Consumer Serv., Rules and Regulations Implementing the Telephone Consumer Protec- Hinman v. M&M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1158 (N.D. (N.D. 1158 RentalHinman v. Supp. 2d 1152, Inc., 596 F. Ctr., M&M 79 76 77 78 79 80 75 B. Targeting the Use of Bill Collector to dun Customer for the money. Bill Collector puts Customer for the money. Bill Collector puts Bill Collector to dun a machine on the job and Number, repeatedly Cell at which calls Customer had agreed to receive phone calls by givinghis phone number to Creditor. The machine, called a predictive dialer, to consumers’ cell phones. Debt collection came into the cross- the into came collection Debt phones. cell consumers’ to hairs of the TCPA because of the industry’s of such use technologies. clearly presented by Judge Easterbrook in cuit held that a prohibited call cuit held that a connection. stated that it was “the act of making the . .” that led call. to TCPA liability. rejected the assertion that the TCPA appliedonly telemarket- to ers. pro- 227(b)(1)(A)(iii) of section plain language “The states, which of autodialers to use any call hibits the make to number a wireless .] the prior express consent of the. called par- in the absence of [. applies this prohibition note ty. We the call solicitation.’” industry. collection debt collection practices with the TCPA, it did intend to protect con- from autodialerssumers and suc all to receipt, much to printing.” less Waller Article4.docx (Do Delete)Not 364 5/21/2014 2005). 2005). 2011). Ill. 2008) 4, (Jan. 11 at ¶ 07-232 FCC 02-278, No. CG Docket 1991, Act of tion (emphasis added). Ill. 2009). 2009). Ill. emarketing, not debt collection.”).

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In De- 365 365 EBT THE 87 D

available at available : As a result, the call 84 ONSUMER C The Defendants in Defendants The 82 As a result, even after re- As a “Bystander” now used “Cell “Bystander” 86 make certain that number still The court disagreed, and held and held disagreed, The court 85

81 OLLECTING tside the Unitedtside States if the recipient is C , 17 (Feb. 2009), 2009), (Feb. , 17

, N ’ HANGE OMM C C made with the prior express consent of the called party express made with the prior § 227(b)(1) (2011) (“It shall be unlawful for any person within within any person for unlawful be shall (“It (2011) § 227(b)(1)

RADE C. Addressing Advances in Technology C. Addressing Advances T

. The Telephone Consumer Protection Act of 1991 Consumer The Telephone at 637. at 637.

ED The use of cellular phones has greatly increased over the Under the TCPA, the Defendants must have had “the pri- have had “the must TCPA, the the Defendants Under Rules and Regulations Implementing the Telephone Consumer Protec- Id. at 643. 679 F.3d LLC, Recovery, Enhanced v. Soppet Id. Id. and reasoned that even though and reasoned that

U.S.C. 47 F Soppet v. Enhanced Recovery, LLC, 679 F.3d 637, 639 (7th Cir. 2012) 2012) Cir. (7th 637, 639 679 F.3d LLC, Recovery, Enhanced v. Soppet 83 85 86 87 81 82 83 84 argued that they had express permission to call “Cell Num- permission argued that they had express M K HALLENGES OF HALLENGES citing citing http://www.ftc.gov/sites/default/files/documents/reports/collecting-consumer- C Number,” the “called party” for purposes of the TCPA was the party they intended to call (i.e., “Customer”). sub- cell phone 263 million there were June 2008 past decade. In scribers in theStates, United and 16% of those subscribers had phones. cell with phone home residential their replaced works autonomously until a human voice comes on the line. If on the line. comes human voice a until works autonomously will join call center in Bill Collector’s an employee that happens, the call. But Customer no longer subscribes to Cell Number, who being A human Bystander. to reassigned been has which that Customer longer was no would Number realize Cell called intelligence human lack dialers predictive But subscriber. the and, like the buckets enchanted by the Sorcerer’s Apprentice, Bystand- Meanwhile master. true by their stopped until continue lis- had to and has minutes airtime of cost the of pocket is out er voicemail.ten to a lot of useless or express consent of the called party.” (or other collectors debt a number, call to consent express ceiving must entities using an autodialer) consent. the provided that person to the belongs would be legal under the TCPA. the under legal would be called to the subscribing means the “person that the “called party” made.” call is number at the time the Waller Article4.docx (Do Delete)Not 2014 5/21/2014 pet ber” the United States, or any person ou any person or the United States, for within the United a call made States—(A) call (other than to make any or purposes emergency prerecorded or artificial an or system dialing telephone automatic any using voice. . .”). ( 2008)). 4, (Jan. 9, 10 559 ¶¶ Rcd. FCC 23 1991, Act of tion

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NTELL UREAU 91 I

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. Vol. 26:3 Vol. W W ENSUS URVEY available at available S C , 3 N NNUAL NNUAL

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ll phones is also necessary to ll phones is also IRELESS EMI S W S ommission-workshop-report/dcwr.pdf.

leservices/jsf/pages/productview.xhtml?s d-facts/index.html). CTIA’ Getting Down to Business: Estab- the How to Business: Getting Down This is especially relevant for consumers This is especially relevant for consumers Loyola Consumer Law Review Law Loyola Consumer ACKGROUND ON 1. The TCPA and Cellular Phone Calls Cellular Phone Calls 1. The TCPA and B

Semi-Annual Wireless Industry Survey exceeded the U.S. population (312.6 million) (312.6 exceeded the U.S. population (2013) [hereinafter CTIA (2013) [hereinafter 88 The protection granted to ce Cell phones present increased privacy and safety concerns concerns and safety privacy increased present phones Cell http://distraction.gov/stats-an Letter from National Association of Attorneys General to Congress 47§ U.S.C. 227(b)(1)(A) (2011); 47 C.F.R. § 64.1200(a)(1)(iii). CTIA, CTIA, 1, 2010 to April States: United the for Estimates Population Monthly Shannon D. Torgerson, . 24, ¶ 38-40 (Fall 2004) (“the very nature of mobile communication tech- 91 92 93 88 89 90 ROP URVEY citing citing http://files.ctia.org/pdf/CTIA_Survey_YE_2012_Graphics-FINAL.pdf. http://files.ctia.org/pdf/CTIA_Survey_YE_2012_Graphics-FINAL.pdf. calls use up limited prepaid minutes and text messages. Here, Here, messages. text and minutes prepaid up limited use calls debts-challenges-change-federal-trade-c S P With respect to safety, a ringing cell phone presents a dangerous a to safety, dangerous presents With respect phone a ringing cell National Highway by the A 2009 study driving. distraction while was use phone cell that indicated Administration Safety Traffic crashes. distraction-related in 18% of fatalities in involved ognizing these special concerns, the TCPA has been interpreted to without calls non-emergency make to autodialers of use ban the phone. to any cell consent prior express prevent cost-shifting. up 2012, made as of June which, plans, phone cell with prepaid million). (74.9 subscribers wireless over 23% of all cember 2011, the number of U.S. cell (315.9 phone subscribers million) Waller Article4.docx (Do Delete)Not 366 brings a renewed phones of cellular use The increased time. first the TCPAjustification for safety, cost- because privacy, and shifting concerns are even greater when robocallers or other tech- a consumer on their cell phone. reach nology is used to 5/21/2014 because consumers bringtheir cell phones wherever they go. rc=bkmk (last visited Apr. 3, 2014). 3, 2014). Apr. visited (last rc=bkmk http://factfinder2.census.gov/faces/tab

http://signon.s3.amazonaws.com/20111207.signon.Final_HR3035_Letter.pdf http://signon.s3.amazonaws.com/20111207.signon.Final_HR3035_Letter.pdf ( lished Business Relationship Exemption to the National Do-Not-Call Registry Registry Do-Not-Call National the to Exemption Relationship Business lished 2011), 7, (Dec. December 1, 2014, U.S. 1, 2014, December http://www.ctia.org/resource-library/press-releases/archive/consumer-data- nologies makes unsolicited sales calls to these devices more intrusive, incon- venient, and dangerous than similar calls made to stationary, landline residential phones.”). traffic-increased-104-percent (in June 2011, 306 million total U.S. subscribers). U.S. subscribers). million total (in June 2011, 306 traffic-increased-104-percent

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Conse- 367 367 In 2009, 98 94

IME T As a result, advertis- No. 09 CV 3413, 2009 WL WL 09 CV 3413, 2009 No.

VER 100 97 Satterfieldv. Simon & O ssage are not distinguishable ssage are not distinguishable , CG Docket No. 02-278, FCC 03- 02-278, FCC No. , CG Docket In Congress intended “to call” to to “to call” intended Congress 95 Joffe, 121 P.3d 831. 831. 121 P.3d Joffe, EARNED see also L In re Rules & Regulations Implementing the of regulation, such as company-specific The putative plaintiff class had received 96 ESSONS L Abbas v. Selling Source, LLC, 2. The TCPA and Text2. The TCPA and Messages

569 F.3d at 949. 949. at F.3d 569 IV. 954. 954. Report and Order, see also see The Telephone Consumer Protection Act of 1991 Consumer The Telephone

, the court held that a text message is within the a “call” at The court then noted that targeted the “com- TCPA ; 99 Congress has amended the TCPA twiceCongress has amended since to ad- 1991 Cellular telephone users are able to sendreceive and 160- that found 9th Circuit The Id. See 952. at 569 F.3d Satterfield, Id. Satterfield, Id. Id.

The next call may be your last . . . Join the Stephen . Join the Stephen . . The next call may be your last Club at www.cellthebook.com. King VIP Mobile PwdbyNexton. RplySTOP2OptOut. 94 95 96 97 98 99 100 M K

dress new technologies and practices. Similarly, the FCC has the Similarly, and practices. technologies new dress used various techniques more than ever, consumers bear the of costs telemarketing calls. “text throughcharacter messages message service (SMS), or short determined FCC 2003, the messaging.” In ban that the TCPA’s text calls. both voice and encompasses on autodialers Schuster meaning of the TCPA. the following text-message advertisement: by telephone.” a person with communicate “to mean TCPA the was “a under message a call” hold that text to quently, of the purpose and meaning plain with the was consistent TCPA. an invasion be would that in a manner others with municat[ing] voice or a text me “a of privacy” and of privacy.” in terms of being an invasion ers are prohibited from text messagessending using autodialers or without the prior consent express of the recipient. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 the 9th Circuit FCC’s determination agreed with the that the to textTCPA applied messages.

Telephone Consumer Protection Act of 1991 of Act Protection Consumer Telephone 153 ¶ 165 (July 3, 2003). 3, 2003). 165 (July 153 ¶ 4884471 (N.D. Ill. Dec. 14, 2009); 2009); Dec. 14, Ill. (N.D. 4884471 C Y 35126-lcr_26-3 Sheet No. 17 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 17 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 17 Side B 06/02/2014 15:10:17 M K PM

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t company- Ideally, the 106 which required required which Vol. 26:3 Vol. 104 the curren the As a result, there has been a 101 c approach, “stating that it pro- approach, c Telemarketing Sales Rule, 16 C.F.R. § ce for telemarketing solicitations. requirements, and the keeping of keeping the and requirements, ed from EBR interactions.ed from Howev- 103 ecific do-not call lists, see also also see (2010). Loyola Consumer Law Review Law Loyola Consumer According to the FTC, the original company- , Rules & Regulations Implementing the Telephone Consumer 105 b)(iii)(A) and time of day time of and 102 at 8767 ¶ 25; at 8767 310.9( Until 2003, both the FCC and FTC required telemarketersUntil 2003, both the FCC and The findings of the FTC review of the company-specific By 2000, the TCPA and Telemarketing Act had been in had been in and Telemarketing Act By 2000, the TCPA See e.g. Id. Id. A. Company Opt-Out Specific Schemes are Inefficient Rules & Regulations Implementing the Telephone Consumer Protec- 16 amendment: to Prior § 64.1200(c); 47 C.F.R. Restrictions, Delivery 4,629 Reg. 68 Fed. Telemarketing Sales Rule, Final Amended Rule, 102 103 104 105 106 101

company-specific opt-out lists. to maintain company-sp company-specific opt-out prevented list abusive patterns by em- while callers, from specific calls to prevent consumers powering still being able to receive other telemarketing calls. in enforcement change the understanding in helpful are technique the of industry generally that members It revealed mechanisms. company-specifi the supported vides consumer choice andsatisfies the consumer protection

consumers to request each individual telemarketer not to call call not to telemarketer individual each request to consumers them again. patterns abusive prohibit to list was “intended do-not-call specific of calls from a seller or telemarketer to a person.” opt-out lists and consent deriv lists and consent opt-out er, the FCC’s perceived value of certain forms of communication ap- advertisements unwanted for tolerance as consumers’ as well time. over decreased have to pears informed toward and a move techniques such away from shift consumer choice. com- consumer although a decade, part of better the for place com- a FTC began the response, In mount. to continued plaints prehensive analyzed review that the effectiveness of existing was particular concern regulations. Of Waller Article4.docx (Do Delete)Not 368 5/21/2014 specific opt-out scheme in pla prerecorded messages heavily re- were While autodialers and iden- by only limited were agents live by conducted calls stricted, tification tion Act of 1991, 7 F.C.C. Rcd. 8752, 8772 ¶ 38 (Oct. 16, 1992). 1992). 16, 38 (Oct. ¶ 8772 8752, Rcd. 7 F.C.C. 1991, Act of tion § C.F.R. (2010)). § 310 C.F.R. at 16 (codified 29, 2003) (Jan.

Protection Act of 1991, 18 F.C.C. Rcd. 14014, 14129 ¶ 38 (July 3, 2003). 3, 2003). (July ¶ 38 14129 14014, Rcd. F.C.C. 18 1991, Act of Protection (2010). 310.4(c) 35126-lcr_26-3 Sheet No. 17 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 17 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 18 Side A 06/02/2014 15:10:17 PM

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369 369 ecific opt-

108 a telemarketer, and than company-sp t-out list which required a tele- required which t-out list med that[the] company-specific e National Do-Not-Call Registry may not initiate an outbound may not initiate an outbound 111 However, “the vast “the of indi- majority However, 107

The implementation of the DNCR was a National Do-Not-Call Registry (“DNCR”) in (“DNCR”) in National Do-Not-Call Registry 109 110 comments made by ARDA, ATA, Bell Atlantic, DMA, ERA,

The company-specific approach is burdensome burdensome is approach company-specific The who must repeat their “do-not- to consumers, every company that calls; call” request with names their to verify way no have Consumers list; off of a company’s calling have been taken and A company-specific approachdoes nothing to call from the first prohibit many consumers findeven initial an from a call telemarketer to be abusive of and an invasion privacy. A “telemarketer” (citing The Telephone Consumer Protection Act of 1991 Consumer The Telephone

x x x x After abandoning the company-specific approach, the the approach, company-specific the abandoning After The FTC agreed with the consumer side and found that: that: and found side consumer the with FTC agreed The the removed and findings such with FCC concurred The The DNCR opened consumers for to register their num- Id. Id. Id. Id. A “telemarketer” is defined as “any person who, in connection with tel- 107 108 109 110 111 M K B. Empowering Consumers: th

FTC established the mandate of the Telemarketing Act while not imposing an undue imposing an undue not while Act Telemarketing the of mandate industry.” the on burden company-specific opt-out 2003. approach in late January 2003. rather dynamic change in regulation: op a universal created out lists, it marketer to seek the recipient’s consent placing prior to any calls. October 1, and enforcement began on 27, 2003, bers on June that: 2003. The Telemarketing Sales Rule established Waller Article4.docx (Do Delete)Not 2014 law state groups and by consumer .] joined . [. commenters vidual enforcement representatives, clai ‘do-not-call’ provision[was] inadequate prevent to the abusive it was intended to prohibit.” patterns of calls 5/21/2014 emarketing . . . initiates telephone calls to or from a customer. or donor.” Tele- . emarketing and MPA). C Y 35126-lcr_26-3 Sheet No. 18 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 18 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 18 Side B 06/02/2014 15:10:17 M K PM

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to abide 115 Vol. 26:3 Vol. g regulation is to create a the EBR recognized by the EBR recipientcould legally call a and required entities more 114 le, the purpose of the Do-Not-Call Reg- Informed Consent

may not cause a telemarketer to ini- 113 112 Loyola Consumer Law Review Law Loyola Consumer tiate such calls; and and tiate such calls; for purposes Registry the may not use A person Telemarketing with the than complying other Rule. Sales telephone call to a person whose telephone num- telephone whose a person to call telephone registry; the national ber appears on A “seller” (Entities such as banks, credit unions, and savings and loans insti-

x x This provision was similar to was similar This provision As a result, were consumers further protected tele- from A recurring trend in telemarketin Id. Id. A “seller” is defined as “a person who, in connection with a telemarket- 310.4(b)(1)(iii)(B). § 16 C.F.R. 112 113 114 115 C. The Established Business Relationship Exemption Is Not Is Exemption Relationship Business Established C. The defined is “Telemarketing” (2010). § 310.2(bb) 16 C.F.R. Rule, Sales marketing as “a plan, program, or which campaign is conducted to induce the purchase of telephones more or of one use by contribution, a charitable or services or goods and which involves more than one interstate telephone call.” 16 C.F.R. § 310.2(cc). strict, opt-in or scheme consent-based followed by an agency rule Business an “Established with parties for an exemption creating Relationship.” For examp opt- to universally ability with the consumers provide istry was to bit uneasy solicitations. Perhaps a out of telemarketing phone call estab- type of regulation, the FCC about this “all-or-nothing” lished that a party with an DNCR. the on number its had listed recipient that if even FCC in the junkprovision fax and attempted to recognize that relationship established with an communications between those to useful be may even and concerns of privacy invasion less have marketing calls. The expanded regulations reached both inter- both inter- reached regulations expanded The calls. marketing calls phone and intrastate Waller Article4.docx (Do Delete)Not 370 5/21/2014 above. listed by the prohibitions ing transaction, provides, offers to provide, or arranges for others to provide to provide others for arranges or to provide, offers provides, transaction, ing Telemarket- consideration.” for exchange in customer to the services or goods (2010). § 310.2(z) 16 C.F.R. Rule, Sales ing

tutions are not subject to FTC rule. However,tutions subject to are they not FCC rules FTC are subject to regulations.). and 35126-lcr_26-3 Sheet No. 18 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 18 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 19 Side A 06/02/2014 15:10:17

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, 59 Today, Today, 371 371 117 Charles V. Gall and See r be sufficient to show that an indi- sufficient be to show r

lines registered on the Do-Not- 118 16 C.F.R. § 310.2(n) (2010)). (2010)). § 310.2(n) 16 C.F.R.

2. The Junk Fax EBR Federal and State Telemarketing Developments State Telemarketing and Federal 1. The Do-Not-Call Registry1. The Do-Not-Call EBR The EBR in the Do-Not-Call Registry reflected a com-

The Telephone Consumer Protection Act of 1991 Consumer The Telephone 116 In 2003, the FCC announced that it would no longer rec- no that it would FCC announced In 2003, the The Do-Not-Call Registry originally recognized an EBR RegistryThe Do-Not-Call EBR recognized an originally confusion in significant the exemption resulted However, Id. Telemarketing Sales Rule, Final Rule Amendments, 73 Reg. Fed. Rules & Regulations Implementing the Tel. Consumer Prot. Act of Telemarketing SalesTelemarketing Rule, (2010) (An § 310.4(b)(1)(iii)(B)(ii) 16 C.F.R. . 1241, 1243 (May 2004) (citing 2004) (May 1243 . 1241, 117 118 119 116 M K AW ognize an exemption EBR for unsolicited fax advertisement. L

and wanted by consumers. The DNCR The by consumers. EBRand wanted re- was eventually Con- codified by junk fax EBR survived when moved while the Act. Fax Prevention Junk in the gress a call to legally a telemarketer allowed which in duration, limited previ- had not consumer on the Registry so long as the consumer be placed on theously asked to seller’s company-specific do-not- call list. consumers might reasonably ex- promise that acknowledged that pect a call from a business, but be may only that expected call for of time after thea reasonable amount consumer contacts the business. the Registry. registered their numbers on for consumers that had removed the exemption. had FCC and the FTC By 2012, both opposing comments of number by the FTC was “persuaded The [the EBR], lack of consumer in industry assurances to confidence con- privacy consumer consumers, abuse and not self-regulate calls.” unwanted in stopping difficulty and the cerns, telemarketing calls to residential caller the where “even consent, written prior require Call Registry EBR.” an and called party [had] Waller Article4.docx (Do Delete)Not 2014 5/21/2014 1991, 18 F.C.C. Rcd. 14014, 14127–28 ¶ 190 (July 3, 2003) (“As of the effective effective of the (“As 3, 2003) (July ¶ 190 14127–28 14014, Rcd. 18 F.C.C. 1991, the EBR will no longe rules, date of these established business relationship existed if the consumer had (i) purchased, a financial into entered or seller the from or services goods or leased rented, transaction with the seller within the eighteen months immediately preceding the date of the telemarketing call; or (ii) made an “inquiry or application regarding a product or service offered by the seller, within months the three im- of a telemarketing call.”); mediately preceding the date Margaret M. Stolar, Stolar, M. Margaret

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Vol. 26:3 Vol. 121 Consequently, the the Consequently, 120 However, those find- 123 e listing information they re- they listing information e ion Act of 2005 (“JFPA”),ion Act of 2005 to fax a menu to a consumer to a consumer to fax a menu s permissionto receive unsolicitedad- effectively prevent realtors from

h calls, adding unnecessary hurdles hurdles unnecessary h calls, adding 124 Loyola Consumer Law Review Law Loyola Consumer . 109-76, at 4 (2005). 4 (2005). at . 109-76, O N

. EP (“[r]ecipients of these faxed of (“[r]ecipients advertisements assume the cost of the R

With the Junk Fax Prevent With the Junk The Senate report focuses on the issue of written consent. Instead of using the above examples to tackle the FCC’s The Senate report on the JFPA gave the following exam- Id. Id. Id. Junk Fax Prevention Act, PubNo. 109-21, L. 119 359 Stat. (2005). S. 120 121 122 123 124 vidual or business has given their expres vertisements.”).

FCC determined that only written and signed express permission that onlyFCC determined express permission signed written and a fax advertisement. to send adequate be would FCC’s that the decision, finding Congress effectively overruled unintended significant, would have interpretation revised “the consumers.” harmed that consequences suc quested when they made and delays even when consumers clearly wanted to receive the faxes as quickly as possible.” an ac- is making a consumer above, listed case in each However, tivechoice to seek information from a business. The information the Moreover, advertisement. unsolicited an is not sought being two examples demonstrate instances where a consumer would expect a response in a of timelimited period (immediately). The would consumer the in which instances involve do not examples then expect an unsolicited fax advertisement months or even years down the road. The stated, FCC “[t]he record in this proceeding reveals consumers andbusinesses receive faxes they believe they have neither so- and also acknowl- receive” to their permission given nor licited edged the cost-shifting nature of junk fax. by the businesses on imposed burden the on relied ings largely requirement. consent written proposed able not be would “restaurants ples: who called and requested one unlessthe caller provided them Ad- one on file. by fax) or had (presumably consent with written faxes and request call often homebuyers .] potential . [. ditionally, FCC’s requirement .] the new . by homes for sale [. when passing for a written signature would th buyers home new faxing potential Waller Article4.docx (Do Delete)Not 372 5/21/2014

paper used, the cost associated with the use of the facsimile machine, with the use and the associated paper used, the cost simile transmissions.”). costs associated with the time spent receiving a facsimile advertisement a facsimile during receiving spent with the time associated costs which the machine cannot be used by its owner to send or receive other fac- other receive or to send owner by its which the machine cannot be used 35126-lcr_26-3 Sheet No. 19 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 19 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 20 Side A 06/02/2014 15:10:17 PM

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132 129 373 373 for the 130 previously recog- previously and and However, this EBR vertisements to a con- 127 133

131 codifying the EBR codifying the EBR by the business or residential subscriber regarding The result is a much broader, more indirect broader, a much result is The ” on the first page of the advertisement, 125 or by the recipient voluntarily placing its its placing voluntarily recipient or by the 128 126 227(b)(1)(C)(iii). which provides a cost-free mechanism number in a directory, advertisement, or on a directory, advertisement, number in a distribution; public for website recipient to opt-out of further unsolicited adver- sender. by the tising sent through voluntary communication within the the within communication voluntary through relation- business established the of context ship, notice The Telephone Consumer Protection Act of 1991 Consumer The Telephone at § 227(b)(1)(C)(ii)(II). at § at § 227(b)(1)(D)(i). at § 227(b)(1)(D)(iv)(II). at § . at § 227(b)(1)(D). 227(b)(1)(D). . at § 1. obtained be must number recipient’s The 2. The unsolicited advertisement must contain a An EBR may be terminated byan opt-out request. Id. Id. Id. Id. (2011). § 64.1200(a)(4)(vi) 47 C.F.R. Restrictions, Delivery Id. § 227(b)(1)(C)(ii)(I) (2011). 47 U.S.C. Id Delivery Restrictions, 47 C.F.R. § 64.1200(f)(6) (2011) (an EBR (2011) means§ 64.1200(f)(6) Delivery Restrictions, 47 C.F.R. 126 127 128 129 130 131 132 133 125 M K consumer continues to do business with a company after opting- after a company with to do business continues consumer sending fax ad out, a sender may resume his express provides subsequently consumer that only after sumer to the sender. permission invitation or technique ignoresinefficiencies the that come with company- specific opt-out schemes, namely, that the consumer must pay for the first unwantedand fax then call to stop future unwanted fax-

proposed requirement of written consent, Congress used them as them used Congress consent, of written requirement proposed expressly justification for nized by FCC. the unso- to an otherwise send consent achieve can way that a sender above examples Compared to the licited fax advertisement. in or- information, requesting and calling are individuals where der to sendunsolicited an fax advertisement pursuant to an EBR established: be must prerequisites only two Waller Article4.docx (Do Delete)Not 2014 5/21/2014

“a prior or existing relationship formed by a voluntary two-way communica- products or services offered by such person or entity, which relationship has not been previously terminated by either party).

tion between a person or entity and a business or residential subscriber with or or with subscriber or residential a business and or entity a person between tion application, inquiry, of an basis the on consideration, of exchange an without purchase transaction or

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. 136 . 345, 375-76 . 345, 375-76 NTELL

I EV entity inform

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. Vol. 26:3 Vol. MPACT I ROOK t that an t that to fax machines through- to fax Mail Control: Filtering Spam , 72 B with limited government en- with limited would require the recipient to pos- would require the recipient to URRENT

ection Act of 2005, 21 F.C.C. Rcd. 3787 C 134 S Faxing It In TCPA’

. Since it was enacted, there has been a decline ) . 102-317, at 6-7 (1991). (1991). at 6-7 . 102-317, HE HE This decline can be attributed to periods of in- of periods to attributed be can This decline Loyola Consumer Law Review Law Loyola Consumer O A. The TCPA’s Relative Success 137 T 138 N

. V. EP R

Jennifer A. Williams, Rules and Regulations Implementing the Telephone Consumer The TCPA has been relatively successful at reducing the successful at reducing the The TCPA has been relatively The TCPA was a response to the “tens of thousands of un- of The TCPA was a response to the “tens of thousands Critics of the JFPA often point to the fact that the sender See See 8 (Dec. 2001). 2001). 8 (Dec. Additionally, there is no requiremen is there Additionally, H.R. Robert G. Gibbons & Lisa M. Ferri, Rules & Regulations ImplementingRules & Regulations the Telephone Consumer Protec- emphasis added emphasis )( 135 135 136 137 138 134 ODAY (2006). (2006). T creased protections, enforcement, greater and technolo- changing gies. telemarketing unwanted and complaints fax junk of number deterred by the TCPA’s largely calls. Legitimate companies are private right of action. This, coupled of right private the on a dependency has perpetuated forcement, the recipient that in so giving its fax number it may now receive sender. particular the from fax advertisements unsolicited sent solicited messages per week” being out the country. telemarket- and unsolicited fax complaints junk of number in the calls. ing phone es from each individual sender. individual each from es Waller Article4.docx (Do Delete)Not 374 need not receive the recipient’s fax number from the directly recipient,but from the can recipient’s pull it website, for example. peri- and unlimited establishing of ease relative the with coupled 5/21/2014 an EBRod of time that led to a great deal of criticism exists, has of the JFPA. tion Act of 1991, 18 F.C.C. Rcd. 14014, 14128 ¶ 190 (July 3, 2003) (In fact, this fact, this (In 3, 2003) ¶ 190 (July 14014, 14128 Rcd. 18 F.C.C. Act of 1991, tion was the basis for removing the EBR. “Unlike the do-not-call list for telemarketing calls, Congress provided no mechanism for optingof out unwanted facsimile advertisements. Such an opt-out list Protection Act of 1991, Junk Fax Prot 6, 2006). (Apr. Through a Mix of Technology, Legislation and the Courts

sibly bear the cost of the initial facsimile and inappropriately place the burden burden the place inappropriately and facsimile initial the of cost the bear sibly a “do-not-fax” on inclusion to contact the sender and request on the recipient list.”

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140 Conse- ANDBOOK 375 375 H 142 AW NFOWORLD L , I Electronic “Junk Mail”: . 1001 (Fall 1997) (for ex- (for 1997) (Fall . 1001 RIVACY A Bold Planto End“Junk

P EV Bill Would Put Some Fax on on Some Fax Put Bill Would R

. l identities, destroy data, or commit al of attention from distracted from distracted of attention al USINESS UFF t resources and a lack of urgen- lack and a t resources ax, apparently one page long). B Destination Ventures, Ltd., v. FCC, 46

see also, e.g., HE HE T , 45 B , ., July 3, 1991, at B8 (describing small claims claims small 3, 1991, at B8 (describing ., July and although it continues to be adapted adapted to be it continues and although EG http://www.infoworld.com/d/data-center/why-the- 141

R Unsolicited Commercial E-Mail and the Telephone and the E-Mail Commercial Unsolicited ENNEDY Why the FaxMachine Refuses to Die K

OUNTY H. ., Jan. 20, 1989; Peter Burrows, Burrows, 1989; Peter 20, ., Jan. C , June 29, 1989, at 43; 29, 1989, at , June HRON (“As privacy intrusions go, telemarketing calls cause little harm. C The Telephone Consumer Protection Act of 1991 Consumer The Telephone

1. The Dependence on Private1. The Dependence Attorney Generals RANGE HARLES Private parties have largely been responsible for enforce-have largely been responsible Private parties A number of factors have created and perpetuated the the and perpetuated created have factors of A number EWSDAY David E. Sorkin, Private parties may seek $500 per violation, which may be Private parties may violation, which may be seek $500 per 47 U.S.C. § 227(b)(3) (2011). (2011). § 227(b)(3) 47 U.S.C. C Venezia, Paul

, O S.F. , N 139 (2008) 140 141 142 139

M K Hold judgment of 22unsolicited cents for f an Telemarketers do not ruin reputations, stea any of the other destructive practices at which much of privacy law is aimed.”). aimed.”). is law of privacy much at which practices destructive other of the any quently, it does not draw a great de a great draw not does it quently, government regulators that are already legislative bodies and ment of the TCPA. This may be attributed to the significantin- centive: the private right a relatively large of action provides amount,statutory damages especially when compared to the “ac- fax or unsolicited telemarketingtual” harm in receiving a junk call. technol- covers it also to cover newer technology, and interpreted may ogy and conduct that some consider outdated. action. However, thegovernment’s decision to implement the Do- andNot-Call Registry, the period of increased enforcement by the the impact that gov- positive demonstrate FCC from 2006-2008 ernment involvement has on the success of TCPA regulation. if the court determines that the de- trebled to $1500 per violation the TCPA. “willfully” violated or fendant has “knowingly” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 serves as a significant deterrent when coupledwith the threat of a class action. TCPA’s dependence on private enforcement. First, the statute governmen with limited operates de- that is particularly conduct not cover does TCPA The cy. structive or dangerous, (Sept. 6, 2011, 3:00 AM), 3:00 6, 2011, (Sept. 135

ample, it is estimated that even in 1991, the most expensive faxes would only only would faxes expensive most the 1991, in even that estimated it is ample, percost about 10 cents fax received); fax-machine-refuses-die-171308. fax-machine-refuses-die-171308. F.3d 54, 56 (9th Cir. 1995) (contrasting plaintiff’s estimate of 2 cents per page per of 2 cents estimate plaintiff’s (contrasting 1995) Cir. 54, 56 (9th F.3d claim FCC’s of 3 to 40with Carroll Lachnit, cents); Judge Orders Fax Sender to Pay Businessman 22 Cents for Sending Unsolicit- ed Ad Consumer Protection Act of 1991 of Act Protection Consumer Fax,” C Y 35126-lcr_26-3 Sheet No. 21 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 21 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 21 Side B 06/02/2014 15:10:17

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144 Vol. 26:3 Vol. . 1137 (2012). (2012). . 1137 EV R

L. ARY M

. M The Enforcement Role of Private Structural W

, 53 Loyola Consumer Law Review Law Loyola Consumer J. Maria Glover, at 1155. at 1155. Due to limited resources for government enforcement, de- See Id.

143 144

Private enforcement counters issues of limited agency resources, especially where the focus of the regulation is something as unex- a fax advertis- prohibiting as innocuous) as relatively (and citing Las Vegas. and vacations to airfare round-trip ing discount stretched thin. Additionally, theprocess of government enforcement – when thedoes FCC become involved– is slow and limited. Professor of action right is unavoidable. private on the pendence through litigation argues that private regulation J. Maria Glover is integral to the structure of the modern administrative state. Waller Article4.docx (Do Delete)Not 376 5/21/2014 Mechanisms in Public Law in Public Mechanisms

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OMM C 377 pg. 10, pg.10, NS NS ’ OMMC C

. ED of steps before the FCC , F Only thirty-nine 39 forfeiture 146 (last updated Feb. 26, 2014). 2014). updated Feb. 26, (last

Weaknesses in Procedures and Performance following a citation, forfeiture pro-

145 The Telephone Consumer Protection Act of 1991 Consumer The Telephone Figure 1 Figure As illustrated, it takes a number a number As illustrated, it takes data the available in 1991, Since the TCPA was enacted Unsolicited Faxes Detailed Information Faxes Unsolicited GAO report (April 2006), 2006), (April GAO report 145 146 M K even issues a citation, and, unless subse- not be issued ceedings and monetary penalties will quent complaints identified. are If a forfeiture penaltynot paid, is the case is referred the to Department of Justice for collection. demonstrates limited government enforcement. Only 1,082 cita- 1999. since tions have been issued Waller Article4.docx (Do Delete)Not 2014 5/21/2014 transition.fcc.gov/eb/tcd/ufax.html Management Hinder Junk Fax Enforcement, http://www.gao.gov/assests/250/249596.pdf. http://www.gao.gov/assests/250/249596.pdf. C Y 35126-lcr_26-3 Sheet No. 22 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 22 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 22 Side B 06/02/2014 15:10:17

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In inter- J.

. 150 T NNUAL S According to A

, 153 N ALL ALL Vol. 26:3 Vol. ’ W note 146. 146. note , (Jan. 4, 2007), 2007), 4, , (Jan. OMM C limited government en- limited government supra , NS NS ’ of for the potential enor- and issued just 23 citations. just and issued DVERTISING indicate the continued enforce- significant deterrent. Troubling Troubling deterrent. significant OMMC A 148 C

een successful under the TCPA. under the TCPA. een successful

. 151 Final Rule, 68 Fed. Reg. 4580 (Jan. 29, (Jan. 29, Reg. 4580 Final Rule, 68 Fed. ED F

statutory damages provision, the class class the provision, statutory damages , Telemarketing Calls ACSIMILE F ORTEITH Loyola Consumer Law Review Law Loyola Consumer M NNE NNE A RIS To place these numbers into greater context, in 2005 the NSOLICITED NSOLICITED The TCPA’s private right of action has proven a signifi- rightThe TCPA’s private of action has proven Since its implementation in 2003, the Do-Not-Call Regis- Private lawsuits, coupled with Private lawsuits, coupled

Lawsuit Seeks $2.2 Trillion For Junk Faxes, Junk For $2.2 Trillion Seeks Lawsuit Unsolicited Faxes Detailed Information Detailed Faxes Unsolicited U 147 has result this practitioners, a few than more to according Although, 774 767, P.3d 263 Inc., Grp., Taranto v. Therapy Physical Critchfield Telemarketing Sales Rule, Information retrieved pursuant to a Freedom of InformationAct Re- K 152 against Fax.com (a fax broadcaster company). against Fax.com 151 152 153 147 148 149 150 2. The National Do Not Call Registry Reduced2. The National Do Not Call Registry Unwanted http://transition.fcc.gov/eb/Orders/2007/DA-07-16A1.html (represents period period (represents http://transition.fcc.gov/eb/Orders/2007/DA-07-16A1.html 2002), http://online.wsj.com/article/SB1030078343814272235.html. http://online.wsj.com/article/SB1030078343814272235.html. 2002),

FCC received 47,704 complaints,FCC received 47,704 to the due deterrent cant action mechanism, and the relative establishing ease of TCPA a example most notable violation. The is a lawsuit thatmous damages in 2002 seeking $2.2 was filed lion views with practitioners it becameclass actionsTCPA clear that for a significantare responsible awareness of—and increase in compliance with—the TCPA. and among consumers popular immensely been try (“DNCR”) has an effective tool in enforcing TCPA regulation. actions have been referred to theDepartment of Justice since 2005. Waller Article4.docx (Do Delete)Not 378 5/21/2014 general attorneys private on dependence continued the However, as a to serve may not continue trends are emerging that seem to ever-increasing “the control to by inadequate may scheme ment access through electronic means that advertisers have to consumers.” forcement, have historically b forcement, have historically been abused by some and represents, as mentioned above, “too strong a ham- interviewed practitioners of the Many critics. to those too little a harm” for mer confidential of the Copies anonymous. to remain asked Report of this part as memoranda submitted in response to the authors’ survey are on file with the authors. 2011). (Kan. quest. ON from July 9, 2005 through July 9, 2006). 9, 2006). July through 9, 2005 July from

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154 379

available at available 157

. RANSMITTED TO THE T RESIDENT P

2009 (2009), 244 http://www.ftc.gov/reports/national-do-not-call-

EPORT OF THE R http://.ftc.gov/reports/national-do-not-call-registry-annual- 155 ANUARY ANUARY J available at available The Telephone Consumer Protection Act of 1991 Consumer The Telephone CONOMIC Figure 2 Figure The DNCR was more than just popular; it was effective.was it popular; than just The DNCR was more By registering their number on the list, consumers prevent- The original Do-Not-CallRegistry contained an “established business 4580, Reg. 68 Fed. Rule, Amended Final Rule, Sales Telemarketing E The authors compiled Figure 2 through reviewing the FTC Do Not available at at available 156 156 157 154 155 M K ONGRESS ed the first call from a telemarketer – drastically reducing the receive. legally could they calls of potential number 2003) (codified at 16 C.F.R. § 310.4(b)(1)(iii)(B) (2010)). § 310.4(b)(1)(iii)(B) 16 C.F.R. 2003) (codified at C one survey, four years after theafter was implemented, DNCR four years one survey, over the list. registered their numbers on had 72% of Americans the in exponentially registration grew the chart below, shown in following years: consum- call to cold able longer no generally were Telemarketers ers. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 Call Registry Annual Reports for the years 2002-2003. The Annual Reports are The Annual Reports are 2002-2003. Call Registry Annual Reports the years for Annual Re- FTC the FY2007 and for website, example, available on the FTC port, http://www.gpo.gov/fdsys/pkg/ERP-2009/pdf/ERP-2009.pdf relationship” exemption. The EBR exemption did, in fact, allow some telemarketers to make one call without fear any of liability as that telemarket- so long er had an EBR with the recipient. Nevertheless, Do-Not-Call the Registry

drastically cut down on the amount of telemarketing calls that were legal be- legal were that calls of telemarketing the amount on down cut drastically fore the Registrywas enacted. report-congress-fiscal-year-2007-pursuant-do-not-call, the FY2010 FTC FTC An- FY2010 the report-congress-fiscal-year-2007-pursuant-do-not-call, nual Report registry-data-book-fiscal-year-2010.

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EPORT ON available at at available available at available R that result- available at available 161 ZYZlNy1PxWz A survey con- NNUAL NNUAL Vol. 26:3 Vol. , A note 146. 146. note N ’ Excluding these two of telemarketing solici- 162 supra OMM , C lemarketing calls from “an ¶ 9 (Sept. 16, 2005), 16, 2005), ¶ 9 (Sept. NS NS ’ essionid=2Z2mPCW active online poll conducted between (Feb. 13, 2004), 13, 2004), (Feb.

OMMC EGISTRY C

. R Complaints ED To Fax or Not to Fax: Analysis of the Regulations Regulations the of Analysis Fax: to Not or To Fax ALL ALL , F -C OT ESAI . 835, 859 (2007) (discussing the different approaches for for approaches the different (discussing . 835, (2007) 859 Loyola Consumer Law Review Law Loyola Consumer D the FTC and FCC reduced the number of, and and of, number the and FCC reduced FTC the -N

O EV S. 158 osed monetary forfeitures. D R

L. ONICA

ALL ALL From 2006-2008, the FCC increased enforcement of the By changing the regulation scheme the regulation By changing M H Unsolicited Faxes Detailed Information Detailed Faxes Unsolicited Id. ATIONAL

Michael R. Laudino, 9-1, Box 2009, p.244, President, of the Report Economic Press Release, Fed. Trade Comm’n, Compliance with Do Not Call N 161 162 158 159 160 3. Increased Government Enforcement Reduced Junk Fax Junk Reduced Enforcement Government 3. Increased 160 ETON http://apps.fcc.gov/ecfs/document/view;js qdthL78p3QPyqZsKp16Q16pTDx3p1nhZQr!1471562840!- 321460796?id=6518162563. 4629 (Jan. 29, 2003) (codified at 16 C.F.R. § 310.4). § 310.4). C.F.R. at 16 (codified 2003) 29, 4629 (Jan. According to a 2004 poll, 92% of those who signed up for the up for the signed 92% of those who 2004 poll, According to a Registry had telemarketing received calls, and fewer 25% of those stated that they had received no telemarketing sincecalls signing up. 738 citations and issued TCPA junk fax provisions prop ed in 78 years, the FCC has proposed only 20 monetary forfeitures since and issued just 1,082 citations the implementation of the TCPA tation from company-specific opt-out, to a “modified consent- scheme,” based calls. telemarketing unsolicited complaints from, Waller Article4.docx (Do Delete)Not 380 found was implemented Registry the a year than after less ducted saw a that registrants reduction in te permonth.” 6 of average month to an per average of 30 calls 5/21/2014 http://www.ftc.gov/news-events/press-releases/2004/02/compliance-do-not-call- http://www.nber.org/erp/2009_erp.pdf. http://www.nber.org/erp/2009_erp.pdf. Registry Exceptional: Over 55 Million Telephone Numbers Registered - Only 2003 in Complaints 150,000 and Potential Burdens Imposed by the Junk Fax Prevention Act of 2005 of Act Prevention Fax Junk by the Imposed Burdens Potential and S THE regulating junk fax, the author refers to a “modified consent” scheme that al- that scheme consent” to a “modified refers author fax, the junk regulating lows for certain “special situations” or relationships wherein a fax sender could a recipient). Similarly, the EBR essentially created to automatically send a fax a “modified consent” based scheme in that it allowed telemarketers to call con- otherwise or seller the from goods purchasing by “consented” had who sumers of an EBR. meeting the definition

registry-exceptional (citing Harris Inter States); United the throughout 3,378 adults 28, 2004, among 19 and January See also 35126-lcr_26-3 Sheet No. 23 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 23 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 24 Side A 06/02/2014 15:10:17 165 PM

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381 Annual re- available at at available See

163 h a database fax of 30 million Broadcast your advertising fax based on radius, Zip Zip radius, on fax based advertising your Broadcast

citing gov/eb/tcd/ufax.html. 164 Figure 4, Junk Fax Complaints Chart (In 2000, the FCC rec- FCC 2000, the (In Chart Complaints Fax 4, Junk Figure and was not the only fax broadcaster that existedonly fax broadcaster the and was not 167 http://transition.fcc.gove/eb/Orders/2002/FCC-02-226A1.html. http://transition.fcc.gove/eb/Orders/2002/FCC-02-226A1.html. The Telephone Consumer Protection Act of 1991 Consumer The Telephone

Figure 3 Figure The cause of this increased enforcement may have been a During this time, the FCC mainly targeted a few entities Federal Communications Commission, available at at available Commission, Communications Federal Id. See infra “In re Fax.com, Inc., File No. EB-02-TC-120, NoticeofApparent Lia- The first amendment of the TCPA, the Junk Fax Prevention Act 166 167 163 164 165 166 M K during that time. However, wit account could companies a few how just see to is easy it numbers, stemming from junk faxstemming 1999. since violations complaints fax in junk the rapid increase to respond to desire to junk fax regula- attention congressional of increased or a result tion. For example, violations. for multiple that were responsible Fax.com asserted thatdatabase “exceed[ed] its 30 million fax numbers” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 http://transition.fcc. (JFPA) of 2005, Pub. L.No. 109-21, 119 Stat. 359 (2005), was enacted in 2005. 2005. in enacted was (2005), 359 Stat. 119 109-21, L.No. Pub. of 2005, (JFPA)

Codes, Metro Area, Area Code, County, State or the entire U.S. using a database that will exceed 30 million fax numbers, 29, 2002)” May accessed (website http://www.fax.com/Why_use_fax/direct.asp at available bility for Forfeiture ( orded 2,200 junk fax complaints. In 2005, the FCC recorded over 47,000). 47,000). over recorded In 2005, the FCC complaints. orded 2,200 junk fax port of Unsolicited Facsimile Advertisements (Rel. Jan. 4, 2007), http://transition.fcc.gov/eb/Orders/2007/DA-07-16A1.html. The JFPA requires the FCC to an submit annual report on unsolicited fax ad- in 2007.; once, report this issued only The FCC vertisements.

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In the late 172 Vol. 26:3 Vol. In 2007, the FCC In 2007, note 146 (the three larg- three (the 146 note 168 (Dec. 18, 2009), 18, 2009), (Dec. supra , RIBUNE T filed 12 lawsuits over junk fax vi- 12 lawsuits over filed unk fax complaints from the yearunk fax complaints from the

170 EWS AND

, Attorney General Zoeller Vows Fight Over Junk Fax- Loyola Consumer Law Review Law Loyola Consumer gov/eb/tcd/ufax.html. 171

, N 169

Figure 4 Figure After 2008, the FCC took a step back and issued few cita- issued back and After 2008, the FCC took a step From the graph below, one can see there was an exponen- Federal CommunicationsCommission, Id. Detailed Information Faxes Unsolicited Although correlation does not imply causation,available the data may David A. Mann

170 171 172 168 169 http://newsandtribune.com/local/x546285000/Attorney-General-Zoeller-vows- olations, and 24 lawsuits over telemarketing olations, and 24 lawsuits calls. Attorneys General of State 2000’s, a number 1990’s and early some of brought actions against largestthe violators of the 2000 until 2005. During and immediately after and immediately this enforcement During 2000 until 2005. period, complaints declined. en- strong continued have General Attorneys State Some tions. forcement efforts in recent For instance, years. in 2009, Indiana General Greg Attorney Zoeller tial increase in the amount in the j of tial increase for the majorityfor the fax violations. of the junk against three companiesproposed forfeitures that totaled over $4.7 million. Waller Article4.docx (Do Delete)Not 382 5/21/2014 demonstrate that the FCC is much more able to tackle repeat, intentional offenders.

http://transition.fcc. Solicitors es, est FCC proposed forfeitures in 2007 were filed against the following compa- following the against filed 2007 were in forfeitures FCC proposed est ($1,133,000), LLC Marketing, Mexico ($2,168,500), LLC Lead Hot The nies: ($1,377,000)). Inc. Leads, Extreme and fight-over-junk-faxes-solicitors/print. 35126-lcr_26-3 Sheet No. 24 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 24 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 25 Side A 06/02/2014 15:10:17 PM

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383 383 Unsolicited Unsolicited 173 This also presents 175 to consumers; in 1991 it was to consumers; in fax server, it would make lit- it would make fax server, effectively protect consumers’ effectively protect consumers’ mputer or fax server, still may “tie mputer or fax server, still may and-alone fax machine or to one asso- fax machine and-alone sent to personal computers and fax serv- fax and computers sent to personal Fax Machine Use If an advertisement is printed, recipients Further, “Congress could not have intended intended have not could “Congress Further, 174 B. Changing Technology 176 The Telephone Consumer Protection Act of 1991 Consumer The Telephone

The TCPA enacted was to respond to the changes in tech- Although the traditional fax machineprecipi- seen has a of a facsimile a sender that “because FCC concluded The Id. Id. There are a plethora of companies offering computer-based fax ser- Rules and Regulations Implementing the Telephone Consumer Protec- 173 174 175 176 1. Continued Importance of the DespiteTCPA the Decline in M K

advertisements, whether sent to a computer or fax server, shift thecosts to the consumer. In 2003, that unsolicit- FCC concluded ed faxes, whether sent to a co are faxes requested recipients’ the that so and printers up lines not timely received.” labor costs, as and increased of materials bear the cost in the form must sort out the employees junk messages. to allow easy circumvention of its prohibition when faxes are (in- faxes when prohibition of its to allow easy circumvention TCPA; however, those lawsuits do not appear to correspond with with to correspond those do not appear lawsuits however, TCPA; a decrease was in the number as overall of junk fax complaints, FCC enforcementseen with the 2006-2008 era. access increased nology that allowed the fax machine. With the decline in junk faxes, the TCPA has that affects new technology the privacy address been adapted to be ana- properly Today, the TCPA may interests of consumers. ability to of its lyzed on the basis use, faxes tous decline in means of communication. important ers remain an discard- message may be inadvertently the risk that an important junk faxes. sifting through while ed a to sent it is being whether has no way to determine message a st number associated with or computer with a personal ciated ulti- that device on the based rules apply different to sense tle mately received it.” cell phones. phones. cell Waller Article4.docx (Do Delete)Not 2014 5/21/2014 tion Act of 1991, 68 Fed. Reg. 44,144, 44,174 (July 25, 2003) (to be codified at at codified be (to 2003) 25, (July 44,174 Reg. 44,144, 68 Fed. Act of 1991, tion 68). and § 64 47 C.F.R.

vices and fax to e-mail or e-mail to fax services to this day. day. to this services to fax e-mail or fax to e-mail and vices

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available at available J.

. Vol. 26:3 Vol. W Included in this to- this in Included 179 , 3 N quarter of 2007, was more de- to personal computers and fax and fax computers to personal Getting Down to Business: the Estab-How Getting Down to Business: 2. Cell Phones and theTCPA and 2. Cell Phones Loyola Consumer Law Review Law Loyola Consumer

Shannon D. Torgerson, 177 There are two trends emerging with respectto cell phones viola- TCPA about The FCC began recording complaints Rules & Regulations Implementing the Telephone Consumer Protec- See The FCC has data on the number of TCPA complaints stemming from . 24, ¶¶ 38-40 (Fall 2004) (“the very nature of mobile communication communication mobile of nature very (“the 2004) (Fall ¶¶ 38-40 . 24, 178 179 177 ROP tal number are complaints by wireless subscribers about “bill about “bill subscribers complaints by wireless are tal number “service relatedshock,” “equipment related issues,” issues,” and P and the current impact of the TCPA: (1) over the past 5 years, (2) and risen; steadily have complaints wireless TCPA-related consumersare increasingly disconnecting their traditional resi- house- phone-only cell becoming of in favor landlines dential messages—orholds. Autodialed or prerecorded any telemarketing in- present phone on a cell matter—received that for solicitations concerns. and privacy safety, cost-shifting, creased ef- regulatory continued of importance the demonstrate trends phones. cell to calls phone marketing illegal forts to prevent tions experienced by consumers onphones their cell in the second quarter of 2007, as seen in the chart below. tentionally or not) transmittedtentionally Waller Article4.docx (Do Delete)Not 384 facsimile ma- stand-alone than to traditional servers, rather chines.” 5/21/2014 violations experienced on consumers’ wireless phones from the first quarter of there 848 complaints that were of 2007 shows quarter first the 2007. However, from TCPA violations experienced on cell phones. In the second quarter of in- dramatic this attributes FCC The complaints. such 3164 were there 2007, crease to a change in the form for reporting TCPA related complaints. The new form, released sometime during the first tailed. The FCC noted there was a clear shift from “general” TCPA complaints, to more specific complaint types like “Wireless.” Information compiled Con- of Informal Report Quarterly the FCC reviewing through authors the by sumer Inquiries and Complaints http://www.fcc.gov/encyclopedia/quarterly-reports-consumer-inquiries-and- tion Act of 1991, 68 Fed. Reg. 41,144, 44,170 (July 25, 2003) (compare the result result the (compare 25, 2003) (July 44,170 Reg. 41,144, Fed. 68 Act of 1991, tion of sending an e-mail received as a text message discussed below, where the technologies makes unsolicited sales calls to these devices more intrusive, in- convenient, and dangerous than similar calls made to stationary, landline residential phones.”). lished Business Relationship Exemption to the National Do-Not-Call Registry Registry Do-Not-Call National the to Exemption Relationship Business lished sender (because of the e-mail address used) likely has knowledge that the e- complaints. mail will be received as a text message). Forces Consumers to Pay for Unwanted Sales Calls 35126-lcr_26-3 Sheet No. 25 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 25 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 26 Side A 06/02/2014 15:10:17

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385 available at available As shown be- As shown 181

180 The Telephone Consumer Protection Act of 1991 Consumer The Telephone The authors compiled Figure 5 through reviewing the FCC Quarterly Quarterly FCC the reviewing 5 through Figure compiled authors The Figure 5 Figure Since 2007, there has beena steady growth in both the to- FCC Annual Reports to Congress pursuant to Do-Not-Call Implementa- to Do-Not-Call pursuant to Congress Reports Annual FCC it a result, As available. yet not of 2012 is quarter fourth the from Data 181 180 M K low, when compared to all TCPA-related complaints received by theit is apparent FCC, that consumers are increasingly experi- by any than phones cell on their conduct unlawful more encing other media. “billing and rates.” TCPA related issues have been responsible for for responsible have been issues TCPA related and rates.” “billing about 75% of wireless-related complaints received by the FCC years: over the past five TCPA- of number total and the complaints wireless of number tal related wireless complaints recorded the by FCC. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 is not easily discernable whether the decrease in the total number of com- a represents to 28,000) 42,000 about (from of 2012 quarter third the in plaints broader decreasing trend in the number of TCPA complaints, or is just a slight anomaly. tion Act. Act. tion ConsumerReports of Informal Inquiries and 2007- Complaints years for fiscal the FCC, on available are Reports Quarterly 2012. The http://www.fcc.gov/encyclopedia/quarterly-reports-consumer-inquiries-and- complaints. C Y 35126-lcr_26-3 Sheet No. 26 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 26 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 26 Side B 06/02/2014 15:10:17

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Loyola Consumer Law Review Law Loyola Consumer r B e

186 182 b 3 5 i y 8 8 l 1 r 1 s c n s s n note 180. 180. note d O Semi-Annual Wireless Industry Survey l b ENSUS o -- i o u s C t

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e e e l s s Figure 7 Figure Figure 6 Figure mean that telemarketersThis data does not necessarily are n e s Supra Supra u r Authors compiled CTIA

e U.S. CTIA, n i l o o e 184 186 182 183 H r W CC i Stephen J. Blumberg, et al., WW http://www.census.gov. (Interestingly, the U.S. population is around 311 mil- 311 (Interestingly, the U.S. population is around http://www.census.gov. lion), and Stephen J. Blumberg, et al., Wireless Substitution: Early Release of 61 National 2010-2011, Survey, Interview Health the National from Estimates 185 intentionally targeting consumers on their cell phones. The in- The cell phones. their on consumers targeting intentionally crease in the TCPA-related number wireless of complaints corre- sub- phone cell of number in the increase an overall sponds with scribers: TCPA-Related Complaints Recorded by FCC (Quarterly 2009-2012) 2009-2012) FCC (Quarterly by Recorded Complaints TCPA-Related Waller Article4.docx (Do Delete)Not 386 5/21/2014 http://www.ctia.org/advocacy/research/index.cfm/aid/10316 (in June 2011, 306 306 2011, June (in http://www.ctia.org/advocacy/research/index.cfm/aid/10316 million US subscribers). Health Statistics Report (Oct. 12, 2012), 2012), (Oct. 12, Report Statistics Health http://www.cdc.gov/nchs/data/nhsr/nhsr061.pdf. population is around 311 million). around population is mates from the National Health Interview Survey Interview Health National the from mates 35126-lcr_26-3 Sheet No. 26 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 26 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 27 Side A 06/02/2014 15:10:17

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NTELL I 187

& 387 387

. ECH T

. W FFECTIVENESS OF , 3 N E percentage of cell phone-only phone-only of cell percentage TCPA violators. Lastly, advances in in advances violators. Lastly, ecome moreeven invasive. Getting Down to Business: How the Estab- Getting Down to Business: THE FFECTING THE A SSUES SSUES I Shannon D. Torgerson, The Telephone Consumer Protection Act of 1991 Consumer The Telephone active cell of of a larger total amount As a consequence of the defined TCPA will be ultimately effectiveness The The remains TCPA relevant because it stems the tide of First, the majority of entities in violation of the TCPA and HREE See

T . 24, ¶¶ 38-40 (Fall 2004) (“the very nature of mobile communication communication mobile of nature very (“the 2004) (Fall ¶¶ 38-40 . 24,

187 M K ROP VI. (Oct. 12, 2012), Report Statistics Health http://www.cdc.gov/nchs/data/nhsr/nhsr061.pdf. P phones, an increase in the amount of TCPA-related wireless wireless TCPA-related amount of in the increase an phones, complaintsexpected. was As cell phone use increases (and the certain increases) also households phone-only of cell percentage telemarketing practices b will greater number of calls received on a cell phone increases the a dangerous time be received at will likelihood that those calls a car). (e.g., while driving for con- need The phones. cell consumers’ protect by its ability to in TCPA-related increase by the is supported regulation tinued wireless complaints over the past five years, the increase in the (and phones of cell number overall to bring cell willingness consumers’ of result and the households), in doing so). for danger potential the (and everywhere phones and, occur, would otherwise that conduct and intrusive abusive its original by justified remains technology, despite changing A privacy. and protecting cost-shifting preventing of purpose number of emerging trends and technology present a challenge going forward. other telemarketing laws doing so intentionally. today are These entities are often based use technology and to their ad- offshore en- public current the Second, detected. avoid being to vantage forcement and application of the TCPA is increasingly inade- intentional to regulate quate technology, most notably cellphones and text messaging, require messaging, require text and technology, most notably cellphones adaptation of the TCPA. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 technologies makes unsolicited sales calls to these devices more intrusive, in- convenient, and dangerous than similar calls made to stationary, landline residential phones.”). lished Business Relationship Exemption to the National Do-Not-Call Registry Registry Do-Not-Call National the to Exemption Relationship Business lished Forces Consumers to Pay for Unwanted Sales Calls C Y 35126-lcr_26-3 Sheet No. 27 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 27 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 27 Side B 06/02/2014 15:10:17 M K 189 PM

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and (2) 188 available at at available ULLETIN B

Rev. 70, 91, n. 133 133 n. 70, 91, Rev.

L. Vol. 26:3 Vol.

. , AARP EB (There is evidence to suggest , 90 N

example, one subset ofexample, one subset in- Protection of “Innocent Lawbreakers”: Striking Striking Protection of “Innocent Lawbreakers”: Stop Spam Text Messages ubsets that more accurately describe those ubsets that more

Loyola Consumer Law Review Law Loyola Consumer A. New Types of TCPA Violators Types of TCPA A. New 190 Yuri R. Linetsky, Sid Kircheimer, Figure 8 Figure The entities responsible for the majority of TCPA viola- Data collected by the FTC andFCC indicates that the See See Do- National FTC’s the reviewing 8 by Figure compiled authors The

189 190 188 (2011). (2011). tions can generally be placed in one of two camps: (1) those that that camps: (1) those one of two placed in be tions can generally the TCPA; violate or unintentionally unknowingly whereas another subset may dobecause simply so it is themost cost-effective way to advertise. TCPA the of disregard in intentional operating entities of number two facts: (1) the by is illustrated This rise. on the to be appears total number of entities that are paying to access the Do-Not-Call Registry is decreasing; and (2) the number com- of telemarketing years. over the past few growing been rapidly plaints has Waller Article4.docx (Do Delete)Not 388 violate thethose that intentionally Within TCPA. each of those are s two camps, there the that have violated regulation. For 5/21/2014 to commit are those actively looking tentional violators fraud; Not-Call Registry Data Books. The Data Books may be found on the FTC Book Data the FY2013 example, for and website, http://www.ftc.gov/sites/default/files/documents/reports/national-do-not-call- the Right Balance in the Private Enforcement of the Anti- “Junk Fax” Provi- Fax” “Junk Anti- the Right Balance in the Private Enforcement of the 3, 2012), http://www.aarp.org/money/scams-fraud/info-10-2012/stop-spam- 3, 2012), sions of the Telephone Consumer Protection Act Protection Consumer Telephone the of sions those sending unsolicited text message advertisements are the largest propor- group). of this tion text-messages.html (quoting Cloudmark study) 35126-lcr_26-3 Sheet No. 27 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 27 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 28 Side A 06/02/2014 15:10:17

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389 atistics over the past several atistics over

191 The Telephone Consumer Protection Act of 1991 Consumer The Telephone Figure 9 Figure Despite thisdecline the in number of telemarketers, there The that fact fewer entities are payingthe for access to Bureau of Labor Statistics, of Labor Bureau

191 M K registry-data-book-fiscal-year-2013/131204dncdatabook.pdf. registry-data-book-fiscal-year-2013/131204dncdatabook.pdf. has been an exponential increase in the number of consumer complaints recorded by the FTC in recent years. Do-Not-Call Registry suggeststhe number that of legitimate enti- telemarketingties engaged in decline. This is on the is further and as defined telemarketers in decrease by the supported of Labor St by the Bureau tracked years: Waller Article4.docx (Do Delete)Not 2014 5/21/2014 http://www.bls.gov/oes/current/oes419041.htm. http://www.bls.gov/oes/current/oes419041.htm.

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incredibly incredibly available at available Vol. 26:3 Vol. using autodialers that can every minute for an every minute the number of entities that are in- the number of entities that are Inadequate FTC Offers $50,000 Reward to Help Stop Robocalls Stop to Help Reward $50,000 Offers FTC

Loyola Consumer Law Review Law Loyola Consumer 192 not 187. 187. not

193 According to the FTC, about 59% of phone spam cannot According to the FTC, about 59% of phone Enforcement of the TCPA is complicated by changing Figure 10 It is reasonable to suggest that the increased complaint Supra Supra Press Release, Fed. Trade AnnouncesComm’n, FTC Agenda for Ro- Lauren Silverman, 194 192 193 194 B. TCPA is Increasingly of the and Application Enforcement technology. Increasingly, those responsible for TCPA violations TCPA violations for responsible those technology. Increasingly, are located outside the U.S. or are using the Internet to complete calls. level is a result of an increase in level is a result of an increase of phone calls send out thousands low cost.” tentionally violating the TCPA. The FTC recently found that that found TCPA. FTC recently The the violating tentionally “[c]onsumers are getting more robocalls than ever. Technology is ultimately to blame: Companies are Waller Article4.docx (Do Delete)Not 390 5/21/2014

NPR (Jan. 02, 2013), www.npr.org/2013/01/02/168444025/reward-offered-to- 02, 2013), (Jan. NPR http://www.ftc.gov/opa/2012/10/robocalls.shtm. http://www.ftc.gov/opa/2012/10/robocalls.shtm. bocall Summit on October 18, 2012 (Oct. 04, 2012), 2012), 04, 18, 2012 (Oct. October on Summit bocall 35126-lcr_26-3 Sheet No. 28 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 28 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 29 Side A 06/02/2014 15:10:17 PM

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196 391 391 (quoting Roberto Anguizola, FTC Assis-

e private right of action and a limited e private right AccordingFTC, to onethe staff member of Do-not-call list is almost like a feel-free-to-call-any- a like almost is list Do-not-call 195 (Sept. 28, 2012), http://www.latimes.com/business/la-fi- 28, 2012), (Sept. note 2. IMES supra T

Federal Trade Commission 788 F. Asia Pacific Telecom, v. Inc., Commission Trade Federal The Telephone Consumer Protection Act of 1991 Consumer The Telephone , L.A. The traditional scheme of TCPA enforcement has reflect- The private right of action has been most effective at en- The FCC’s enforcement process for violations of the See or are proof, judgment there is little incentive for an indi- Nelson, David Lazarus, 197 195 196 197 M K help-stop-robocalls.

be traced or blocked because the phone calls are routed through through routed calls are phone the because or blocked traced be “a web of automatic dialers, caller ID spoofing and voice-over- Internet protocols.” “you can track down one source ofthe calls, but there are likely using the of others now type of recording.” same hundreds on th ed a strong reliance that scheme has Although involvement. amount of government been relatively successful in the past, two mainissues are becoming clear: (1) the private right of action is limited in bothincentiv- intentional vi- and deterring the actions of, izing lawsuits against, olators; and (2) the current FCC enforcement mechanism fails to yield timely results. legitimate otherwise of conduct prohibited deterring and forcing violators of intentional population companies. The ever-growing presents a new challenge. When are located over- TCPA violators seas effort The bring a lawsuit. to plaintiffs private of or class vidual becomes futile when the violator cannot even be located. com- on consumer relies process This slow. TCPA is inherently a number requires process and the time over accrue that plaints of steps before meaningful taken.During action this is time, the to operate while escapingviolator may continue actual enforcement. For example, consider the following enforcement FCC ac- violation: fax tion concerning one junk Waller Article4.docx (Do Delete)Not 2014 5/21/2014 Supp. 2d 779 (N.D. 2011) (defendantsIll. violated the Telemarketing Act by repeatedly making illegal telemarketing calls. The defendant corporations had as their principal places of business: Kowloon, Hong Kong; Almere, Nether- lands, and the Northern Marina Islands). tant Director of Marketing Practices). Practices). of Marketing Director tant lazarus-20120928,0,3063900.column

time list C Y 35126-lcr_26-3 Sheet No. 29 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 29 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 29 Side B 06/02/2014 15:10:17

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2007 6 6 2007 ONGRESS C CT OF A available at available Vol. 26:3 Vol. 12-2A1.pdf. 12-2A1.pdf. EPORT TO XTENSION The FCC is allowed FCC is allowed The R E 199 available at available available at available EE F DDITIONAL ttachmatch/FCC- EGISTRY , No. EB-07-TC-13323 (Fed. Commc’ns , No. EB-07-TC-13323 A R

, N ’ ALL C ek an injunction. ek an OMM OT OT

C N

200 O Loyola Consumer Law Review Law Loyola Consumer 198 D RADE T

ED The FCC’s Enforcement 1,000 cita- over Bureau issued Figure 11 Under the Communications Act, the is FCC required to Five Star Advertising, Inc. Advertising, Star Five Transcript of Robocalls: All the Rage, An FTC Summit at 184-86 (Oct. (Oct. at 184-86 Rage, An FTC Summit the All of Robocalls: Transcript Id. F

200 201 198 199 URSUANT TO THE URSUANT TO THE http://www.ftc.gov/sites/default/files/documents/public_events/robocalls-all- rage-ftc-summit/robocallsummittranscript.pdf (Eric Bash, Associate Bureau 18, 2012), 18, 2012), only to issue a citation (i.e., a warning) to entities that do not hold .] to alert this entity that may typically be not . FCC licenses “[. that the in a regulated space FCC .] aware that it is operating . [. [. . .]” in is involved tions to Do-Not-Call Registry from violators 2003 until 2009. utilize this enforcement process, and unlike the FTC or a State to go directly power FCC the the not have does General, Attorney into federal court to se Waller Article4.docx (Do Delete)Not 392 5/21/2014 P (Dec. 2009), 2009), (Dec.

http://www.ftc.gov/sites/default/files/documents/reports/additional-report- http://fjallfoss.fcc.gov/edocs_public/a Comm’n Jan.2012), 5, Chief, FCC Enforcement Bureau). congress-pursuant-do-not-call-registry-fee-extension-act- 35126-lcr_26-3 Sheet No. 29 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 29 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 30 Side A 06/02/2014 15:10:17 PM

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393 393 1 The The 1

1 If the FCC continues to the FCC continues If 202 Security First’s conduct in 1

. ore the initial FCC citation, and a re- the initial FCC ore ed five Notices of Liability, Apparent led the FCC to conclude that Security 1 As a consequence, the FCC issued a Notice of issued a Notice of the FCC a consequence, As 1 Hundreds of other illegal calls were probably made to 1 (2) providing an opt-out telephone number in the prere- 1 The Telephone Consumer Protection Act of 1991 Consumer The Telephone

CASE STUDY #1: Security First of Alabama, LLC LLC #1: Security First of Alabama, CASE STUDY Id.

Apparent Liability to Security First in the amount of $342,000. This Notice of Apparent on April Liability was issued 14, 2011; This did citation. the issued first FCC the after years a half two and upon based Moreover, operations. First’s Security to stop nothing decision to ign First’s Security From the complaints it received, the FCC found that Security First sent 43 unsolicited, prerecorded advertising messages to 33 consumers. other individuals, yet went unreported. (1) calling phone numbers registered on the National Do-Not-Call Registry, corded messagewas that always busy or disconnected, (3) failing to honor do-not-call requests that were made, and (4) deliberately “spoofing” its caller ID, First was a “particularly egregious distributor of prohibited prerecorded messages.” First was given 30 days to respond to the citation in the form of ei- the form in citation to the to respond 30 days given was First a state- FCC, or providing the with interview an requesting ther ment responding to the citation. Security First did not respond to citation. the The complaints about continued to roll in. Security First’s con- late 2010 un- From consumers. just than more affecting began duct in located Incorporated, A.V.P.S. called a company til mid-2011, callers.” angry with “bombarded being was Arizona Tempe, that A.V.P.S.’s so ID had caller its First “spoofed” Security reason: telephone number was displayed on consumer caller ID displays when Security First made its telemarketing calls. 26, on November FCC the by a citation issued was First Security messages. advertising prerecorded unsolicited, delivering for 2008, Act, with 503(b)(5) of the Communications accordance Security In 202 M K 2007/100104dncadditionalreport.pdf

However, the FCCHowever, only issu pace, itsproceed at this enforcement of TCPAthe will be almost entirely ineffective. resulting in only two forfeiture orders addressing Do-Not-Call vi- Do-Not-Call addressing orders two forfeiture only resulting in time period. same that olations during Waller Article4.docx (Do Delete)Not 2014 5/21/2014 C Y 35126-lcr_26-3 Sheet No. 30 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 30 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 30 Side B 06/02/2014 15:10:17

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C Y COM No- . 2:30 FCC FCC

INDER INDER H , GAO-06-425, AZFAMILY , available at available

Monitronics Fund- Monitronics 205 FFICE Vol. 26:3 Vol. Historically, the Historically, the ANAGEMENT O 204 M

No. 3-08-CV-333, 2008 WL 4367296 4367296 WL 2008 3-08-CV-333, No. In the Matter of Security First of Al- First In the of Security Matter (2006), (2006), ERFORMANCE CCOUNTABILITY P A T ’ OV G NFORCEMENT E TATES Loyola Consumer Law Review Law Loyola Consumer S ROCEDURES AND P http://www.azfamily.com/news/consumer/FCC-Cracks-Down-

EB-08-TC-6825 ¶ 3 (Apr. 14, 2011); Gary Harper, Gary 14, 2011); 3 (Apr. ¶ EB-08-TC-6825 AX NITED fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-11-61A1.pdf; F U

C. Advances in Technology Require Adaptation C. Advances in Technology

203 The FCC’s reliance on consumer complaints has limited and interpretations guided have technology in Advances After the FCC receives a junk fax complaint, it records the the it records complaint, fax FCC receives a junk the After See Id.

Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications fusal to respond to a civil lawsuit resulting in a default judgment, it is likely that they will also ignore the Notice of Apparent Liabil- ity. 204 205 203 EAKNESSES IN UNK W J

FCC had issues with consumers not providing all the information information the all providing not consumers with FCC had issues agencyneeded for the toor with tracking a violation go forward com- the junk fax of 60% In 2005, about enforcement. pursuing an attachment of the not include fax,plaints did and “therefore, have not would practice], Bureau’s FCC Enforcement [the under been included in the FCC’s enforcement spreadsheet. As a result, searches in complaints these have included would not FCC the considered them or offenders or repeat for major alleged violators or enforcement.” investigation in decisions about further will weakness this past. However, in the its enforcement for in technology that makes it difficult be exposed by increases consumers to identify violators. A new enforcement process is necessary for effective TCPA enforcement. amendment of the statute since Currently, its enactment in 1991. text message spam identification-spoofing the growth in and challenges. Thetechnology present the greatest current focus on identification requirements must be reconsidered, as new technology has it easier to deceive made consumers and the ignore re- complaint on an enforcementspreadsheet. Waller Article4.docx (Do Delete)Not 394 5/21/2014 (May 10, 2011), (May 47 On-Telemarketer-That-Harrassed-Tempe-Business-121574534.html; Consumers Division, Enforcement Bureau, File No. EB-08-TC-6825 (Novem- EB-08-TC-6825 File No. Bureau, Enforcement Division, Consumers 26, 2008), ber http://www.gao.gov/assets/250/249596.pdf.

C.F.R. § 64.1200(c)(2) (2011); 47 C.F.R. § 64.1401(e) (2011); § 64.1401(e) 47 C.F.R. (2011); § 64.1200(c)(2) C.F.R. LLC, Alabama, of First v. Security LP ing tice of Apparent Liability for Forfeiture, LLC, abama, (N.D. Tex. 2008). Tex. 2008). (N.D. crackdown on telemarketer that harassed Tempe business harassed that telemarketer on crackdown 35126-lcr_26-3 Sheet No. 30 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 30 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 31 Side A 06/02/2014 15:10:17

. (Ju- , S.F. 2:30

, N.Y. RIB T sending sending ORRESTER 395 395

. 213 , F HI (citing Ferris , C text messag- 206 As it becomes easier 210 (quoting Greg Goldfarb, a

By 2011,6 billion text messages http://articles.chicagotribune.com/2004-07- 208 and the and CAN-SPAM Act, http://blogs.forrester.com/michael_ogrady/12-06- 212

and a continued increase in text message message in text increase a continued and with text messaging users sending or re- sending users messaging with text http://www.nytimes.com/2012/04/08/technology/text- SMS Usage Remains Strong in the US in Usage Strong Remains SMS 211 Spam Invades a Last Refuge, the a Last Spam Invades Cellphone 209 Cell Phones New Target of Spammers of New Target Phones Cell note 204. 204. note Spam Texts Hit 4.5 Billion, Raising Consumer Ire Consumer Raising 4.5 Billion, Hit Spam Texts Text message spam is also a major concern for 214 supra Rules and Regulations Implementing the CAN-SPAM Act of 1. Growing Concern Over Text Message Spam Over 1. Growing Concern (June 19, 2012), (June The Telephone Consumer Protection Act of 1991 Consumer The Telephone

. (70% mobile of phone owners regularly send or receive text messag- Overdecade the last therebeen has an exponential in- Under the TCPA the Under . (Apr. 30, 2012), http://www.sfgate.com/business/article/Spam-texts- 30, 2012), . (Apr. Id Id. citing citing and text message text message Research and spam. A report by Forrester (Apr. 7, 2012), 2012), 7, (Apr. Rules & Regulations Implementing the Telephone Consumer Protec- Ct. App. (Ariz. 841 831, 3d P. 121 Corp., Acacia Mortgage Joffe v. Nicole Perlroth, Tanaka,Wendy O’Grady, Olga Kharif, Michael O’Grady, O’Grady, Michael (According to Forrester Research, 80% of the U.S. population owns a owns population U.S. 80% of the Research, to Forrester (According

207 212 213 214 207 208 209 210 211 206 M K IMES HRON ESEARCH ly 10, 2004), 10, 2004), ly 10/business/0407100257_1_cell-phone-text-messaging-internet-spam. T C quirements with impunity. impunity. with quirements crease in theof cell phone amount subscribers, ing, were sent eachday, R Inc. indicated that in 2003, just 17% of U.S. Inc. indicated that cell phone customers were sending text messages. messages per day. of 35 ceiving an average their spammers on will change phones, consumers to reach cell practices accordingly spam seems inevitable. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 text message spam is illegal. However, consumers received about text 4.5 billion spam re- messages in 2011, up from 2.2 billion ceived in 2009. 2003 and the TCPA, 19 FCC Rcd. 15927, 15933 (2004)). (2004)). 15933 15927, Rcd. TCPA, 19 FCC the and 2003 tion Act of 1991, 18 F.C.C. Rcd. 14014, ¶ 165 (July 3, 2003) (Indicating that the (Indicating 3, 2003) 14014, ¶ 165 (July Rcd. Act of 1991, 18 F.C.C. tion TCPA’s “ban on autodialers encompasses both voice and text calls, including short message service (SMS) calls.”). ( 2005) 19- sms_usage_remains_strong_in_the_us_6_billion_sms_messages_are_sent_each _day mobile phone). es, according to Forrester Research.). according to Forrester es, message-spam-difficult-to-stop-is-a-growing-menace.html?_r=0 hit-4-5-billion-raising-consumer-ire-3520012.php

managing director at Summit Partners, “Bad actors will go to the biggest in- stalled base worldwide. The volume of abuse that to comes people around me has increased 50 times in the last 18 months.”). C Y 35126-lcr_26-3 Sheet No. 31 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 31 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 31 Side B 06/02/2014 15:10:17

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available at available By responding By responding Vol. 26:3 Vol. 220

216 note 216. 216. note note 213. 213. note supra ay to reach millions of consum- ay to reach millions more than 5.5 million spam text million spam 5.5 more than supra

In 2004, a spokesman for Verizon spokesman a In 2004, ome/20121122005014/en/14.2-million- 218 215 http://www.ftc.gov/opa/2011/02/loan.shtm. http://www.ftc.gov/opa/2011/02/loan.shtm. note 206. 206. note Loyola Consumer Law Review Law Loyola Consumer In the case mentioned above, the defendant ad- defendant the above, mentioned case In the 219

supra

available at available

Today, spammers are able to send millions of texts at a millions are able to send Today, spammers The technology associated with text messageThe technology associated with spam pre- Like faxes, text messages Consumers arrive automatically. The widespread use of cell phone technology has provided provided phone technology has cell of use The widespread 221 Id. Id. 217 Tanaka, Press Release, Fed. Trade Comm’n, FTC Asks Court to Shut Down AdaptiveMobile Press Release, Press Release, FTC Text Messaging Press Release, AdaptiveMobile, 14.2 Million Brits Bombarded By SMS 216 217 218 219 220 221 215 ‘STOP’ or by visiting his website and filling out a form,‘STOP’ or by visiting the de- website his in- sold that and then information consumers’ collected fendant formation to marketersclaiming were “debt they settlement leads.” Research study). low cost using basic technology. the FTC For example, in 2011 had sent stopped a man after he consum- services and encouraged vertised mortgage modification “loanmod-gov.net.” website, ers to visit his wireless telephone providers. telephone wireless reporters. In 2004, a it was noted that expensive cell to send carriersphone spam: “most between 8 charge per and 12 cents virtually spam over the Internet is sending message, while free.” messages – a rate of about 85 text messages per minute, every mi- days. nute over a period of 40 may respond to messages by writing ‘OPT-OUT’ or ‘STOP,’ an active has reached spammer the that this confirms however, number. phone Waller Article4.docx (Do Delete)Not 396 that, at Wireless indicated point, wireless companies had that been somewhat successful at “beating back” the potentialon- slaught of text message spam, but noted “like your homethat computer,there are some thatget through.” a cost effective w spammers with 5/21/2014

Text Messaging Spammer (Feb. 23, 2011) [hereinafter FTC Text Messaging Text FTC Messaging [hereinafter 23, 2011) (Feb. Spammer Text Messaging Release], Press Spam, (Nov. 22, 2012) [hereinafter AdaptiveMobile Press Release], Release], Press AdaptiveMobile [hereinafter 22, 2012) (Nov. Spam, http://www.businesswire.com/news/h Brits-bombarded-SMS-spam#.Uz76zlehHHo (indicating that, in Great Britain, that received text spam claim that they would leave their of those opera- “29% rea- is a month.” It text messages spam between 11 and 30 if they received tor sonable to assume that tolerance in the United States would at be a much low- er level (meaningconsumers would switch carriers much sooner), given the in compari- by Americans received spam of text message amount low current counterparts.). British to their son

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225 397 397 , N.Y. ANKRATE , B or similar reward, similar reward, or

223 227 may accidentally sign up up sign may accidentally (Only 10% of e-mail spam is sent with with sent is spam 10% of e-mail (Only

ionally, of the the language TCIDA As a result, it is exceedingly difficult to Another text message scam encourages 228 222 note 186 note note 212 (quoting Christine Todaro, FTC attorney). FTC attorney). Todaro, Christine 212 (quoting note Eluding A Barrage of Spam Text Messages of A Barrage Eluding accurate caller identification information with accurate caller identification with information supra Walmart Warns of Text Message Scam Text Message of Warns Walmart supra or a similar deceptively named site. At the site, con- Unlike of the most TCPA, the TCIDA is not enforce- 224 229 The Telephone Consumer Protection Act of 1991 Consumer The Telephone

In 2010, the TCPA was amended by the Truth in Caller It is often difficult to discover message the origin of text According to a study by Cloudmark, a company that by Cloudmark, study a According to Id. Id. Similar to “phishing” with respect to e-mail spam, the practice is called Kircheimer, Taub, A. Eric (2011). § 227(e) 47 U.S.C. Perlroth, Perlroth, Claes Bell, 226 227 228 229 222 223 224 225 226 2. Congress Should Reconsider “Identification” Requirements Requirements “Identification” Reconsider Should 2. Congress M K able by private parties. Addit sents an even greater harm. Consumers Consumers harm. greater even sents an simply on a by clicking service” for a “bogus, impossible-to-cancel in a text message. link their personal information, to enter in required sumers are then numbers. security or social numbers card credit including be known as “smish- to has come practice common increasingly ing.” identification the Unfortunately, conduct. fraudulent on focuses consumers to “claim a Walmart Gift Card,” a consumers to “claim called “walmart- its victims to a website it then directs gift.mobi,” software,makes anti-spam 70% of all text message de- spam is signed to defraud the recipient in way. some locate offenders, which frustrates the of efforts private plaintiffs attempting to enforce the TCPA. it illegal to “knowingly transmit ID Act (“TCIDA”), which made misleading or in anything obtain or wrongfully harm, cause defraud, to intent the of value.” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 how learned spammers have calls, spam. As with telemarketing to evade identification. (May 24, 2012, 10:00 AM), AM), 10:00 2012, 24, (May http://www.bankrate.com/financing/banking/walmart-warns-of-text-message- Apr. 4, 2012, at B9 (Discussing self-help available for consumers concerning concerning consumers for available self-help B9 (Discussing at 4, 2012, Apr. to call back the recently tried I why when “Which is messages: text spam that stated text), a recording (via offer the loan that sent payday number phone ‘the number you dialed is not a working number.”).

scam. “smishing” because text messages are also known as short message service service message short as known also are text messages because “smishing” SMS. or messages, fraudulent intent).

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IKIPEDIA PRC Reply PRC Reply available at available available at available citing Vol. 26:3 Vol. In reviewing the Inthe reviewing 230 , W more notoriety for its illegit- A spoofed caller ID display display ID A spoofed caller lations Implementinglations in the Truth 234 atute are insufficient. insufficient. are atute d.html?pagewanted=all&_r=0 (“Tele- it is increasingly used to encourage 233 Consequently, technology caller ID-modifying Who’s on the Line? Increasingly, Caller ID is Duped Loyola Consumer Law Review Law Loyola Consumer 232 (Jan. 22, 2013, 4:04 PM), PM), 4:04 22, 2013, (Jan. IMES For example, “doctors responding to after hours mes- responding For example, “doctors (Nov. 22, 2011), http://www.nytimes.com/2011/11/23/us/whos-on- 2011), 22, (Nov. T 231 Spoofing caller ID has gained has Spoofing caller ID An outright ban on caller ID manipulating technology manipulating ID on caller An outright ban LAPD on Guard After Tom Cruise, Chris Brown ‘Swatting’ Incidents Brown ‘Swatting’ Chris Tom Cruise, After Guard on LAPD Caller ID spoofing Caller IMES Matt Richtel, Advance Notice of Proposed Rulemaking Concerning Caller Identifi- and Regu of Rules the Matter In T

234 230 231 232 233 consumers to pick up the phone. the up pick to consumers imate (and now illegal) use. While spoofing technology has been imate (and now illegal) use. While recipient, prank the to used may be beneficial both to consumers (who screen calls) and busi- calls) (who screen consumers to both beneficial be may num- back a at call certain have consumers wish to (that nesses ber). a truthful to deliver a telemarketer to enable designed be may requirements provided by the st by the provided requirements benign of a number are there because inappropriate be would example, a Caller so. For doing for reasons beneficial and even Wireless” as “Verizon party identified calling the ID display with is much more meaningful to a display showing consumer than a name,Verizon’s legal “Cellco Partnership.” comments received the from public,noted the FCC that there are legitimatea “variety of reasons for altering caller ID information.” want to may providers medical patientssages from their or other use return theirchoose cell phonesbut to transmit to the calls, the as number phone cell their than rather number office their number.” calling Waller Article4.docx (Do Delete)Not 398 5/21/2014 http://en.wikipedia.org/wiki/Caller_ID_spoofing (last modified Apr. 1, 2014, 1, 2014, Apr. modified (last http://en.wikipedia.org/wiki/Caller_ID_spoofing ID”). caller to spoof reasons (“Valid 5:55 PM) http://hraunfoss.fcc.gov/eduocs_public/attachmatch/FCC-11-100A1/pdf. Caller ID Act of 2009, FCC 11-100, pg. 4-5 (June 20, 2011) ( 2011) 20, (June 4-5 pg. 11-100, FCC Act of 2009, ID Caller cation, (Fed. Trade Comm’n Jan. 28,2011), 28,2011), Jan. Trade Comm’n (Fed. cation, http://www.ftc.gov/sites/default/files/documents/public_comments/16-cfr-part- at 4-5) Reply at 3; DOJ http://latimesblogs.latimes.com/lanow/2013/01/lapd-on-guard-after-tom-cruise- L.A. N.Y. the-line-increasingly-caller-id-is-dupe 310-telemarketing-sales-rule-00044%C2%A0/00044-57517.pdf (comments of of (comments 310-telemarketing-sales-rule-00044%C2%A0/00044-57517.pdf Verizon and Verizon Wireless). chris-brown-swatting-incidents.html.

marketers increasingly are disguising their real identities and phone numbers to provoke people to pick up the phone. ‘Humane Soc.’ may not be the Hu- mane Society. And think the I.R.S. is on the line? Think again. Caller ID, in other words, is becoming fake ID.”). 35126-lcr_26-3 Sheet No. 32 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 32 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 33 Side A 06/02/2014 15:10:17

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since 235 237 399 399 and (3) re- (2) prohibits (2) prohibits 240 239 a result, identification identification a result, entification requirements is to send unsolicited commercial crime 37 (West Supp. 2004). Supp. 2004). 37 (West thful identification. As thful identification. and prerecorded and autodialed messages and autodialed and prerecorded 236 The Telephone Consumer Protection Act of 1991 Consumer The Telephone The issue with the TCIDA’s id required sender identificationThe TCPA has for fax 47 C.F.R., §§ 64, 68: 64.1200(e)(iv) (1998) (“A person or entity making a entity making a or (“A person (1998) 64.1200(e)(iv) 68: 64, §§ 47 C.F.R., Supp. (West 2004). Act, 15 U.S.C.A. §§ 7701-7713 CAN-SPAM § 10 18 U.S.C.A. § 7704(a)(4). 15 U.S.C.A. For example, the company SpoofCard offers 60 minutes of calls with a person any for be unlawful shall (“It (1998) § 68.318(c)(3) 47 C.F.R. 238 239 240 235 236 237 M K the transmission of spam to individuals that have opted out of re- opted that have the transmission of spam to individuals ceiving further communications from the sender; in all com- included information be identification certain quires e-mails containing fraudulent header information; header fraudulent containing e-mails pitch, or to get a debtor to answer the phone. Both examples may Both examples to answer the phone. to get a debtor pitch, or be of little but may consumers, be frustrating to harm. actual entities to and individuals enabling technology two-fold. First, available. readily and is cheap spoof their identification practical and may little have enforce to difficult are requirements effect. transmissions from delivering stopped companies not 1992, but that has mak- totelemarketer the back lead that do not numbers callback spam consider this point, illustrate To further call. phone ing the the CAN-SPAM Act of 2003. under regulated e-mail, which is CAN-SPAM, a makes it (1) Waller Article4.docx (Do Delete)Not 2014 com- or otherwise others deceive to intend that ond, individuals require that by regulations deterred to be unlikely mit fraud are tru them to provide 5/21/2014

telephone solicitation must provide the called party with name the the indi- of vidual caller, the name person of or entitybehalf the on whose the call is being be may or entity the person at which address or number a telephone and made, prere- or artificial an using a solicitation makes entity or a person If contacted. must entity or the person autodialer, an by transmitted message voice corded prerecorded or autodialer of the that than other number a telephone provide call.”). the placed which player message spoofed caller ID for $9.95. $9.95. for ID caller spoofed within the United Statesuse a computer to or other electronic device to send clearly message such unless machine facsimile a telephone via message any the on or page transmitted of each bottom or at the top a margin in contains, identification an sent it is time and and date the transmission, of the page first of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. Telephone facsimile machines manufactured on December and after transmitted each on information identifying such mark clearly must 20, 1992 at 47 located are requirements identification fax machine Today, message.”). § 68.318(d)). C.F.R.

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The Adam Adam 26 J. 245 see also Additional regu- Vol. 26:3 Vol. CAN-SPAM has 244 243 MPACTING THE I to have legislation in place to have legislation in place The Economics of Spam, Economics The SSUES SSUES are illegal to dispense without are illegal to dispense without I ter legitimate companies that is legal, so long as the practice is legal, so long , Oct. 23, 2003, at A1; at 2003, 23, , Oct. In 2010, it was estimated that estimated 2010, it was In termined to act illegally, an addi- termined to act illegally, an 242 OST do little to stop them. TCPA P

. ODERN ASH unsolicited commercial e-mail. Much of already acting illegally. M . 2767, 2822 (2004). (2004). 2822 . 2767, , W EV R Senate Votes 97-0 to Restrict E-MailAds: Bill Could

L. 87 (Summer 2012). 87 (Summer Loyola Consumer Law Review Law Loyola Consumer As with spoofing caller ID, the practice of send- the caller ID, spoofing As with 241 DDRESSING ORDHAM

ERSPECTIVES In 2003, when CAN-SPAM was enacted, was CAN-SPAM In 2003, when spam comprised Today, the TCPA remains statute a relevant as advances Regulation of spoofing caller ID – like regulation of spam – like regulation of spam Regulation of spoofing caller ID is unnec- This is not to say that regulation of such conduct Id. 72 F P Good Laws for Junk Fax? Government Regulation of Unsolicited Solici- of Unsolicited Regulation Government Laws for Junk Fax? Good

15 U.S.C.A. §§ 7704(a)(3), (a)(5). (a)(5). §§ 7704(a)(3), 15 U.S.C.A. Jonathan Krim, Justin M. Rao and David H. Reily, 774 767, P.3d 263 Inc., Grp., Taranto v. Therapy Physical Critchfield . 241 242 243 244 245 VII. CON E adheres to certain requirements.adheres to certain e-mail traffic. nearly 60% of all tional technical regulation will in technology continueto lead to “ever-increasing access through consumers.” to have advertisers that means electronic ing unsolicited commercialing unsolicited e-mail e-mail traffic was spam. 88% of worldwide on had a limited effect the sale of including already illegal, was “spamming activity intellectual prop- infringing on trademarks and counterfeit goods that erty rights, or pharmaceuticals state ship across (or even to jurisdictions many a prescription in with a valid prescription).” to a consumer lines that clearly regulates the use of caller ID manipulation, spam e- mail, and the like. These laws de and consumers conduct, in this intrusive engage would otherwise are better protected as a result. However, it seems evident that, are de with respect to those that mercial e-mail. mercial lations fail to deter those overall a larger part of most likely that is conduct – targets il- is already that conduct individuals, or scam defraud to scheme are spoofing caller entities that or individuals legal. Additionally, ID are just as likely to located overseas as be or those individuals with spam. entities flooding inboxes essary. To the contrary, it is important Waller Article4.docx (Do Delete)Not 400 5/21/2014 Lead to No-Spam Registry No-Spam to Lead

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401 401 ntional violators. The case study below study below case ntional violators. The CASE STUDY #2: Fax.com CASE STUDY #2: Fax.com The Telephone Consumer Protection Act of 1991 Consumer The Telephone A. Increase Government Enforcement of the TCPA Government enforcement of the to the is critical success While consumers havebeen protected from some the of in- regula- up, government piled lawsuits private While proposed In 2002, the FCC had tors slowly intervened. forfeiture against Fax.Com for TCPA violations. In con- junction with the proposed forfeiture, the FCC issued letters of inquiry to companies over 100 citations and that used Fax.Com’s service to send fax advertisements. of numerous of was subject From 2000-2005, Fax.Com was most notable The country. the across lawsuits filed trillion seeking $2.2 in 2002 California a lawsuit filed in in damages. At least one of these lawsuits was success- quickly it However, judgment. final a in securing ful became clear to the members of Covington& Burling goal was to draw (the plaintiff’s firm) that Fax.Com’s faxes. illegal to send it continued litigation while out the One year after being hit with a $2.3 million judgment, Fax.com was still sending as many as 785,000 faxes per week. M K 2011). (Kan. TCPA. In the past, private parties have represented the majority the represented past, private have TCPA. In the parties of TCPA enforcement, right of action still serves and the private as a significant deterrent. Nevertheless, neces- there is a growing sity for government enforcement actions due to a considerable amount of in the interise TCPA’s private right of action serves action effective deterrent as an private right of TCPA’s in legitimate companies. of conduct the curtailing of a number are TCPA, there by the targeted conduct trusive steps that should be taken to increase the effectivenessthe of statute. The FCC enforcement process takes too long. Consumers more transparent process. by a quicker, served better would be regu- about existing consumers at educating Additionally, efforts long go a also would recognize scams or frauds to how lation and impact of TCPA violations. the way in reducing of the current shortcomings of govern- provides an illustration ment enforcement. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 C Y 35126-lcr_26-3 Sheet No. 34 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 34 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 34 Side B 06/02/2014 15:10:17 M K PM

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No. 03- No.

note 146 supra , (Jan. 1, 2004), 2004), 1, (Jan. Vol. 26:3 Vol. COM . IRED

y General Bill Lock- y General Bill 246 , W Press Release, Fed. Comm’ns forfeiture, a $5.4 million d valid judgments in excess of in excess judgments d valid h a valid injunction issued, issued, injunction h a valid ws unsolicited faxes and pre- and faxes ws unsolicited Unsolicited Faxes Detailed Information Detailed Faxes Unsolicited Loyola Consumer Law Review Law Loyola Consumer Kaufman Sys., ACS Inc., 110 v. App. 4th 886, Cal. 2 Cal.

, Redefining Progress v. Fax.Com, Inc., No. C 02-4057 MJJ, No.Redefining Progress v. Fax.Com, Inc., C 02-4057

The Fax.Com case study demonstrates the difficulty and demonstrates the difficulty The Fax.Com case study Fax.com Still Dodging Legal Slaps Still Dodging Fax.com See, e.g.

posed the previously proposed proposed posed the previously for viola- single ever imposed largest fine the penalty, is- was injunction an 2004, tion of the TCPA. In spring sued in the case filed by the California Attorney Gen- refrain and its surrogates eral, mandating that Fax.Com Wit junk faxes. from sending Fax.Com finally agreed to stop. However, even after the citations and proposed forfei- practices. on with the illegal ture, Fax.Com continued State of Cal- General for the 2003, the Attorney In July against the company, a lawsuit ifornia then filed seeking Ac- relief. other and in penalties million more than $15 Attorne cording to then-California with high-levelyer, “Fax.Com, technology and low-level op- invasion law, runs a 24-hour privacy respect for the spe continually that eration FCC im- calls.” In January 2004, the recorded phone 246 http://www.wired.com/techbiz/media/news/2004/01/61861?currentPage=all http://www.wired.com/techbiz/media/news/2004/01/61861?currentPage=all (quoting Jason Levine, an attorney at Covington & Burling, “During the course of our litigation, became very clear it quickly that Fax.com was very skilled at it against lawsuits that of time length the to draw out system legal the using would be pending.”);

time it takes to stop an entity that is determined to violate the an of fines imposition TCPA. The $7 million did little to deter Fax.Com’s conduct. It was likely the It was likely the Fax.Com’s conduct. little to deter did $7 million if the injunc- result threat of (which would criminal prosecution coerced the company to stop its practice of that tion was violated) advertisements. fax unsolicited sending Waller Article4.docx (Do Delete)Not 402 5/21/2014 Rptr. 3d 296 (2003); Aronson v. Fax.com Inc., No. AR00-003023, 2001 WL WL 2001 AR00-003023, No. Inc., Fax.com v. Aronson 296 (2003); 3d Rptr. (“$5,379,000 forfeiture proposed against Fax.com, Inc. for violations of the violations for Inc. Fax.com, against proposed forfeiture (“$5,379,000 Telephone Consumer Protection Act.”); CA-1109 (D.C. Super. Ct. 2003); Levitt v. Fax.com, Inc., 383 Md. 141, 857 141, 857 Inc., 383 Md. v. Fax.com, CA-1109 (D.C. Super. Ct. 2003); Levitt N.Y.S.2d 4, 779 3d 4 Misc. Inc., Enine, v. & Gratt Rudgayzer 1089 (2004); A.2d 51 Cal. v. Inc., Term Exch., E-Commerce App. (N.Y. 2004); Bruns 882, 884 LLC, Wireless, Cingular v. McGarry (2011); 1188 1185, P.3d 248 722, 717, 4th v. & Powell, LLP Hanna Campbell (2004); 35 34, S.E.2d 599 App. 23, Ga. 267 Ct. Common (Ohio 25696634 WL 2003 CV No. 2002-12-6926, Inc., Fax.com, 1202609 (Pa. Ct. Common Pleas Feb. 28, 2001); Morris v. Fax.com, v. Morris 28, 2001); Feb. Pleas Ct. Common (Pa. 1202609 Pleas 2003); Pleas WL 926853 (N.D. Cal. 2003); Covington & Burling v. Int’l Mktg. & Research, & Research, Mktg. Int’l v. & Burling Covington 2003); Cal. 926853 (N.D. WL Ct. 2003); Ryan (D.C. Super. 21384825 WL 2003 01-0004360, No. CIV.A. Inc., Singel, 35126-lcr_26-3 Sheet No. 34 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 34 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 35 Side A 06/02/2014 15:10:17

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403 403

available at available ; available at available (Oct. 11, 2004), 2004), 11, (Oct. COM .

EWS 247 https://oag.ca.gov/news/press- e to track and locate enti- ncy currently able to bring able to bring ncy currently s to millions pri- of people, DMN fficulty locating the company. company. the locating fficulty t must generally defer to the t must generally ate ofate California Department of Jus- Comm’n, FCC fines fax.com over $5 wsuit Against One of Nation’s Largest Against One of Nation’s wsuit available at available mer Protection has said, “These are mer Protection solicitations, David Vladeck, Director of Vladeck, Director of David solicitations, Increasing Incentive FTC Offers $50,000 Reward to Help Stop Robocalls Stop to Help Reward $50,000 Offers FTC Fax.com Accepts Injunction, Accepts Fax.com The Telephone Consumer Protection Act of 1991 Consumer The Telephone Fax.Com was a company originally based in California, California, in based originally was a company Fax.Com Government enforcement is necessary. parties do Private The FCC is the only federal age The FCC is the only Lauren Silverman,Lauren 247 M K B. Aiding FCC Enforcement Efforts: Expanding Authority and Expanding B. Aiding FCC Enforcement Efforts: NPR (Jan. 02, 2013), www.npr.org/2013/01/02/168444025/reward-offered-to- 02, 2013), (Jan. NPR http://www.dmnews.com/faxcom-accepts-injunction/article/85570/. releases/attorney-general-lockyer-files-lawsuit-against-one-nations-largest- tice, Attorney General Lockyer Files Files Lockyer General La tice, Attorney BusinessesJunk Fax (July 22, 2003), http://transition.fcc.gov/eb/News_Releases/DOC-225128A1.html; Press Re- Press http://transition.fcc.gov/eb/News_Releases/DOC-225128A1.html; lease, Office of the Attorney General, St Violating for Inc. Fax.Com, Against Fine $5,379,000 FCC Proposes Comm’n, “Junk Fax”Prohibition (Aug.7, 2002), and private parties did not have di not have did parties and private responsible the companies that are increasingly Unfortunately, overseas. With of TCPAfor the majority are located violations respect to telemarketing the FTC’s Bureau of Consu . They are computer-blasted . not like. the calls we grew up with calls that are enabledthe by Internet. The are outside dialers the and these dialers are U.S. generally, out an capable of blasting calls.” telephone of number unfathomable not possess the resources or the incentiv not possess the resources or the Waller Article4.docx (Do Delete)Not 2014 5/21/2014 ties located outsideUnited the States. Even for companies located within the United such States, as the individual that the FTC from sending text message prohibited vate parties may lack incentive an bringenforcement an to action against them because (for private is meaning- parties) a judgment recover damages. less without the ability to FCC enforcement process. Several statutory amendments to the TCPA may increase the amount and effectiveness of government viola- per penalties (1) increasing including: actions, enforcement tion; (2) enablingFCC to dispense the its typical with enforcement procedure; and enabling (3) the FTC to bring enforcement enforcement Attorneys State actions against TCPA violators. ability, bu General also have this help-stop-robocalls.

http://transition.fcc.gov/eb/News_Releases/DOC-242654A1.html Hovanyetz, junk-fax; Press Release, Fed. Comm’ns million for sending2004), “junk faxes” (Jan. 5, C Y 35126-lcr_26-3 Sheet No. 35 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 35 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 35 Side B 06/02/2014 15:10:17 M K PM

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Vol. 26:3 Vol. iduals and entities that vio- iduals ral question jurisdiction should jurisdiction should ral question g regulation, and because of the in- and g regulation, ity of its application. The Supreme Supreme The ity of its application. Mims v. Arrow Financial Services, Mims v. Arrow ies. Granting State Attorneys General, General, Attorneys State Granting ies. in pursuing indiv in pursuing FCC interpretive rules. Lastly, rules and mem- rules and Lastly, interpretive rules. FCC Loyola Consumer Law Review Law Loyola Consumer C. Increase Uniformity of Application Increasing the number of government agencies that could Increasing the penalties per violation for government government for violation per penalties the Increasing The TCPA has been amended and interpreted by FCC by FCC and interpreted amended TCPA has been The The TCPA wouldmore effective be a statute if steps were , that the TCPA provides fede whom have historically shown a willingness to bring such claims, claims, to bring such a willingness shown historically whom have the increase will damages higher seeking suit bring ability to the incentive for these state agencies to bring enforcement actions. in more result also TCPA would the under of action bring a cause effective enforcement actions. Enabling the FTC to bring en- the fed- forcement provide violators actions against TCPA would with arsenal broader a with agency protection consumer eral actively in- already The FTC is consumers. protect to which likely TCPA, and would by the implicated areas the in volved have greater success actions against TCPA violators. against TCPA violators. actions by both the action more government encourage would agencies the FCC may Attorneys General. Currently, State by FCC and Attorneys General, on the State violation. per seek up to $16,000 only provided with the same other hand, are damages statutory part amount as private Waller Article4.docx (Do Delete)Not 404 5/21/2014 indirectly bring more uniformity in application. To the extent extent To the uniformity in application. more bring indirectly naturally solve cannot courts litigation in federal that increased and industry consumers issues, uniformity of application the and frequent by more served better be would alike members delivered quickly over- regulatory FTC/FCC addressing oranda of understanding LLC Court’s recent decision in rules and many judicial decisions over the past twenty years. past twenty decisions the over many judicial rules and this has re- process, slow FCC rulemaking with the Combined and confusion statute of the interpretations in inconsistent sulted conduct. of certain legality as to the uniformthe to increase taken late the FTC Act or Telemarketing Sales Rule when provided Sales provided Rule the FTC Act or when late Telemarketing with the broader enforcement tool of theTCPA. Since the TCPA is more than just telemarketin respect to unsolicitedcreasing amount of fraud with calls and text TCPA the under FTC to bring suit the empowering messages, con- protect FTC to ability of the effectively the would increase sumers. 35126-lcr_26-3 Sheet No. 35 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 35 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 36 Side A 06/02/2014 15:10:17 PM

In 2:30 248 405 405 , only the Sixth and , only the Sixth and The Second, Third, 251 , several law firms stat- , several 132 S. Ct. 740 (2012). (2012). Ct. 740 132 S. LLP (Jan. 24, 2012), 24, 2012), (Jan. LLP

Mims s not deprive the federal district district federal the not deprive s Flood of TCPA Claims Expected in Fed- Mims v. Arrow FinancialMims v. Arrow Services, ANDERS S risdiction over private lawsuits alleg- lawsuits private over risdiction Uniformity The Court held that the grant TCPA’s 249

decision, be it can expected that TCPA lit- 250

252 ROUTMAN Mims Foxhall Realty Law Offices, Inc. v. Telecomm’s Realty Law Inc. Foxhall Premium Offices, , T David N. Anthony, al., et The Telephone Consumer Protection Act of 1991 Consumer The Telephone In the year since more federal courts were opened to

The Supreme Court in Court Supreme The After the Until the Court’s 9-0 decision in Until the Court’s 9-0 decision 253 See e.g., See Id. Id. Cir. (6th 3d 459, 463-465 630 F. LLC, Satellite, EchoStar v. Charvat , the Court resolved a split among the circuits regarding , the Court resolved circuits regarding a split the among

Mims v. Arrow Financial Services, LLC, , only recently addressed the issue of federal question juris- 253 248 249 250 251 252 1. Increased Litigation in Federal Courts Should Bring More Courts Should in Federal 1. Increased Litigation M K LLC parties. by private brought violations TCPA over diction private TCPA litigants, the number of TCPAprivate TCPA litigants, the cases filed in- lap would provide much needed clarity to all involved parties. parties. involved to all clarity needed much provide lap would Mims without di- court party may file suit in federal whether a private whetherversity jurisdiction, the TCPA granted or exclusive jurisdiction to state courts. doe courts to state of jurisdiction question ju federal of courts ing TCPA violations. held had previously Circuits Eleventh and Ninth, Fifth, Fourth, pri- over jurisdiction question federal lacked courts district that vate TCPA claims. igation will increase in federal courts (either initially filed or re- filed initially (either courts in federal increase igation will suit Following the by defendants). moved Waller Article4.docx (Do Delete)Not 2014 5/21/2014 over jurisdiction question federal recognized Circuits Seventh TCPA violations. alleging private lawsuits ed that they expected a “flood claims” in of TCPA federal courts. http://www.troutmansanders.com/flood-of-tcpa-claims-expected-in-federal- Servs., Ltd., 156 F.3d 432, 434 (2d Cir. 1998); ErieNet, Inc. v. Velocity Net, Velocity Net, v. Inc. ErieNet, 1998); Cir. 434 (2d 432, 156 F.3d Ltd., Servs., v. Inst. & Technology Science Intern’tl 1998); Cir. (3rd 519 513, 156 F.3d Inc., King, Chair The 1997); Cir. (4th 1158 1146, F.3d 106 Inc., Comm’s, Inacom v. Murphy 1997); Cir. (5th 514 507, 131 F.3d Corp., Cellular Houston v. Inc. Services, Financial Arrow v. Mims 2000); Cir. (9th 915 911, 204 F.3d Lanier, 2010). Cir. (11th 920, 921 421 Fed.Appx. LLC, eral Courts

2010); Brill v. Countrywide Home Loans, Inc., 427 F. 3d 446, 447 (7th Cir. (7th Cir. 3d 446, 447 427 F. v. CountrywideInc., Home Loans, 2010); Brill 2005) courts-01-24-2012/. courts-01-24-2012/. C Y 35126-lcr_26-3 Sheet No. 36 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 36 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 36 Side B 06/02/2014 15:10:17 M K PM

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(Jan. 16, 2012), 16, 2012), (Jan. Vol. 26:3 Vol. COM . ), TCPA re- litigation er Protection Statutes Statutes Protection er 256 other-consumer-lawsuit-statistics-dec- and FCRA NTERACTIVECREDIT https://www.webrecon.com/b/2012-year-end- 255 , I

However, relative to other consumer protec- consumer other to relative However, FDCPA and Other Consumer Lawsuit Statistics, Dec 16- Loyola Consumer Law Review Law Loyola Consumer 254 258 257 Figure 13 TCPA Litigation in Federal Court TCPA Litigation Figure 12 Consum TCPA Litigation vs. Other WebRecon, LLC, https://www.webrecon.com/b/2012-year-end-stats/for- LLC, WebRecon, LLC, WebRecon, Jack Gordon, § 1692. Act, 15 U.S.C. Practices Collection Debt Fair et seq. Act, § 1681 Reporting Credit Fair 255 256 257 258 254 mains a relatively low proportion of a federal court’s docket: low proportion mains a relatively creased by 34%. creased tion statutes (e.g., FDCPA Waller Article4.docx (Do Delete)Not 406 5/21/2014

31 & Year-End Review 2012 Review 31 & Year-End immediate-release-fdcpa-and-other-consumer-lawsuit-statistics-dec-16-31- http://interactivecredit.com/?p=1761 (1101 cases in 2012 compared to 825 in to 825 in compared in 2012 cases http://interactivecredit.com/?p=1761 (1101 2011). stats/for-immediate-release-fdcpa-and- year-end-review-2012/.

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261 407 407 available at available ONSUMER ONSUMER Although it is C hone and Consumerhone and 264

U.S. confirmatory text mes- confirmatory

Indeed, many consumers , behalf of the government will government behalf of the ue to suffer from interpretive ue to suffer from ders Review Act, which deals with ju- decision creates a more uniform uniform a more decision creates SSOCIATION A 15, § 1.6-4 (2011), (2011), § 1.6-4 15, pertaining to the pertaining TCPA, which sug- Implementing the Telep

Mim’s The FCC has concluded that this prohi- this that has concluded FCC The

. 6.1 263 ARKETING M ERSION 2. More FCC Rulemaking is Necessary V

, An such FCC ruling, as the one discussed below, can a standpoint, From a practical The Telephone Consumer Protection Act of 1991 Consumer The Telephone to make non-emergency calls without prior express con- express prior without calls non-emergency make to OBILE 259 260 Recall that the TCPA strictly prohibits the use of auto- The result of the uni- in providing role a critical plays FCC rulemaking FCC con- Ruling, the Declaratory In its November 2012 262 Rules and Regulations and Regulations Rules M (2011). 64.1200(a)(1)(iii) § 47 C.F.R. (2011); § 227(b)(1)(A) 47 U.S.C. Rules & Regulations Implementing the Telephone Consumer Protec- Rules & Regulations Implementing the Telephone Consumer Protec- Hobbs Administrative Orders Review Act of 1950, 64 Stat. 1132, reen- 1132, Stat. Act Review of 1950, 64 Orders Administrative Hobbs 261 262 263 264 259 260 M K RACTICES acted as 28 U.S.C. 2341-2353 (Challenges to FCC rules and regulations are are regulations and to rules FCC (Challenges 2341-2353 28 U.S.C. as acted subject to the Hobbs Administrative Or regulations.) of agency review dicial dialers calls. and text voice both to extends bition P sent to any cell phone. any cell to sent 16-31-year-end-review-2012/ fragmentation. Greaterfragmentation. on action issues. uniformity of application cure help and interpretation of theimplementation formity and clarity in TCPA. judicial of inconsistent potential the from industry-members save to the reasonableness of review and limits judicial interpretations theFCC rule. sidered the issue of whether a one-time confirmatory text message the was a under request violation an opt-out acknowledge to sent TCPA. sage – sent to opt-out in response to a request of further texts – expect. might be a reasonable thing to see a confirmatorymay wish response, to to know that they have in fact been removed from the sender’s text messaging list. application of the statute, because if only fewer courts are consid- with- remain decisions inconsistent However, issues. certain ering issuesin circuits on certain statute gests that the will contin Waller Article4.docx (Do Delete)Not 2014 5/21/2014 tion Act of 1991, CG Docket No. 02-278, FCC 03-153 ¶ 133 (July 3, 2003). 2003). 3, (July ¶ 133 03-153 FCC 02-278, No. CG Docket 1991, Act of tion 2003). 3, (July ¶ 165 03-153 FCC 02-278, No. CG Docket 1991, Act of tion Protection Act of 1991, C.G. Docket No. 02-278, FCC 12-143 (Nov. 26, 2012). 26, (Nov. 12-143 FCC 02-278, No. Docket C.G. 1991, Act of Protection

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Vol. 26:3 Vol. hone and Consumerhone and The FCC concluded concluded FCC The ited to just to ited parties the 1) merely confirm the con- 267 andpoint) that a confirmatory that andpoint) the TCPA orthe [FCC’s] rules the opt-out text messagediscussed case Implementing the Telep s could result in millions of dollars in in dollars of millions s could result in

sent in response to a request it to opt-out, 265 The FCC responded in late November November late in FCC responded The 269 Confirmatory texts must: “( Loyola Consumer Law Review Law Loyola Consumer t-out confirmatory text message case was filed on

With the TCPA’s statutory damages differ- provision, at 4. at 4. 31 ( at 4 n. Whether this is a natural result of the rulemaking process Whether this is a process rulemaking natural result of the A single FCC decision can provide a unified, national national a unified, A single FCC decision can provide The importance of FCC interpretative guidance is demon- The TCPA provided guidance little on the issue. Neither 266 Rules and Regulations and Regulations Rules Id. Id. Id. Id. Id. 270

266 267 268 269 270 265 sumer’s opt-out request and do not include any marketing or promotional information; and (2)only are additional the message sent to the consumer after of the opt-out request.”). receipt

2012. as long as the confirmation text meetsas long as the confirmation text specific characteristics.” that “one-time texts confirming no further text a request that sent be does not violate messages voice and guide to interpreting the TCPA. Here the agency was that prevented inconsistent – although able to issue a ruling Moreover, the FCC’s pro- equally reasonable – interpretations. cess is likely more informed than merely one federal or state court hearing the matter. The FCC’s rulemaking process requires a (busi- parties interested different many which in period comment In considered. be to opinion their file alike) and consumers nesses lim is usually proceeding a court contrast, reasonable (from a consumer’s st consumer’s (from a reasonable text would be message that the text mes- a judge’s standpoint) (from is also reasonable his sent consumer the after “consent” had no longer sage-sender request. opt-out or her ent judicial interpretation litigation. particular in the involved strated by the confirmatory FCC re- the which with speed is the however, issue, One above. declaratory and issues industry members from sponds to petitions pe- example, the original For above. discussed one the like rulings tition in the op February 16, 2012. Waller Article4.docx (Do Delete)Not 408 the text of theTCPA cir- history address the nor its legislative re- deemed is consent express prior which under cumstances 5/21/2014 voked. liability. With onepotential TCPA ruling, however, declaratory theFCC clarified the law on this matter. Protection Act of 1991, C.G. Docket No. 02-278, FCC 12-143 at 2 (Nov. 29, 29, 2 (Nov. at 12-143 FCC 02-278, No. Docket C.G. 1991, Act of Protection 2012).

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409 409 However, Similarly, 274 273 nationwide uniformi- Charvat v. EchoStar guarantee een confined to different me- to different confined een udicial interpretations – a nat- interpretations udicial nt jurisdictions considering TCPA nt jurisdictions considering TCPA optimistic that the TCPA will be- optimistic that the TCPA will nt more often to issue guidance. noted that “[t]elemarketers generally peddle their ser- their peddle generally “[t]elemarketers that noted Reduce Confusion from Regulatory Overlap Overlap from Regulatory Confusion Reduce at 459. at 459. at 466. 272 The Telephone Consumer Protection Act of 1991 Consumer The Telephone , Althoughboth the CAN-SPAM Act andTCPA pri- the The TCPA’s effectiveness depends on the FCC continuing continuing FCC on the depends effectiveness TCPA’s The Uniform regulation is necessary to provide industry mem- Uniform regulation is There is reason to be A continued FCC presence through declaratory rulings rulings declaratory through presence FCC A continued Id. Id. Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466 (6th Cir. 2010) 2010) (6th Cir. 466 459, 630 F.3d LLC, Satellite, v. EchoStar Charvat As opposed to thousands of state courts, TCPA lawsuits are now more 271 271 272 273 274 M K 3. Clearer Rules and Memoranda of Understanding Could Help Help Could of Understanding and Memoranda Rules 3. Clearer there is no guarantee. As the TCPA expands to cover new tech- surface, and the of opinion will nologies, reasonable differences FCC must be prese marily regulate the use of technology to send unsolicited messag- b generally have two statutes the es, due to the amount of the research required or number of interest- of or number required of the research amount the to due ed parties involved is not immediately clear. to timely deliver these declaratorytypes of rulings. This is espe- new forms of statute is interpreted to address cially true as the likelihood of incon- interpretations reduce the technology. FCC on judicialinterpretations – as the focus of sistent judicial inquiry the topic would be on the reasonableness of the FCC’s interpretation. deci- of conflicting possibility the creates] [which nationally vices different state and federal jurisdictions.” sions in and interpretations would serve both consumers and industry and industry consumers both serve would and interpretations members well. are legallypractices of what bers with a clear understanding in Sixth Circuit the For instance, permitted. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 Satellite jurisdic- multiple spans often business agencies’ collection debt j inconsistent tions. Consequently, ural result of the many differe regula- to unclear exposed members industry lawsuits – leaves tion. come more uniformly interpreted as the statute is litigated more frequently in federal rather courts than state courts. (“[a]lthough a decision bythe FCC would not likely to be filed in, or removed to, federal courts.

ty, it would narrow the scope of judicial inquiry to whether the agency reason- statute.”). the interpreted ably C Y 35126-lcr_26-3 Sheet No. 38 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 38 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 38 Side B 06/02/2014 15:10:17

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, 6 C Y or 2:30 Spe- 281

279 Gareth S. are defined are defined See also, See also, Vol. 26:3 Vol. Anyone may write 277 33, 36 (2010). 33, 36 (2010). RTS A

s (MSCMs), which s (MSCMs), which &

capacity—(A) to store or produce tel- . 278 33, 36 (2010). 36 (2010). 33, utilized by a subscriber of com- 121 P.3d 831, 837-38 (Ariz. Ct. App. Ct. App. (Ariz. 837-38 831, 121 P.3d

RTS ECH A T

. Mobile Marketing Derailed: How Curbing Cell- J.L.

. ECH 33, 36 (2010). 36 (2010). 33, T ASH

Mobile Marketing Derailed: How Curbing Cell-Phone RTS J.L.

Loyola Consumer Law Review Law Loyola Consumer A . , 6 W

. ASH 275 Gareth S. Lacy, 121 P.3d at 837-38 (Ariz. Ct. App. 2005); 2005); Ct. App. (Ariz. 837-38 at 121 P.3d ECH

For example, a cell phone user that subscribed to subscribed that user phone a cell For example, T , 6 W

276 Under the CAN-SPAM Act, both the FTC and the FCC CAN-SPAM reaches text messages if “the messagesan use Internet-to-cell phone text messages follows: every work as Id. J.L.

See also See also Mobile Marketing Derailed: How Curbing Cell-Phone Spam in Satter- Joffe, §7712. 15 U.S.C. dialing telephone ‘automatic term (“The (2011) § 227(a)(1) 47 U.S.C. CAN-SPAM Act, 15 U.S.C. § 7712 (2006) (Section 14 of the CAN- of the 14 (Section (2006) § 7712 Act, 15 U.S.C. CAN-SPAM Gareth S. Lacy, Co., Acacia Mortgage Joffe v. . 278 279 280 281 275 276 277 ASH ephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”). 2005); 2005);

With respect to the TCPA, messages text are considered a “call” party As a mes- is charged. result, called text the if the for which dialing system,” telephone sage is sent by an “automatic the TCPA. it is illegal under without consent of the recipient, regulate certain text messages. the FTC’s rules, the Examining

AT&T with the have the following number (123) 456-7890 would e-mail address [email protected]. an e-mail to that address, which carrier then the wireless converts into a text message. The message is then sent directly to a person’s cell phone as a text message. name.” Internet domain an Internet address that includes dia (e-mail for CAN-SPAM,dia (e-mail machines for and fax and telephones overlap: resulted in an new technology has the TCPA). However, internet-to-cell phone text implicate messages both the TCPA and CAN-SPAM. that is typically which address, an e-mail has number cell-phone user’s cell phone number with their carrier’s Internet wireless address. Waller Article4.docx (Do Delete)Not 410 5/21/2014 to regulate FCC has the power the CAN-SPAM, under cifically, mobile service commercial message as “a commercial electronic mail message that is transmitted directly to a wireless device that is service.” with such . in connection . . service mobile mercial

system’ means equipment which has the

Spam in Satterfield v. Simon & Schuster May Have Banned Text-Message Text-Message Have Banned May & Schuster v. Simon Satterfield Spam in Lacy, Phone Spam in Satterfield v. Simon & Schuster May Have Banned Text- Banned May Have & Schuster v. Simon Satterfield Spam in Phone Message Advertising SPAM Act explicitly states that the Act does not preempt the TCPA.). SPAM Act explicitly states that the field v. Simon & Schuster May Have Banned Text-Message Advertising W Advertising 35126-lcr_26-3 Sheet No. 38 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 38 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 39 Side A 06/02/2014 15:10:17 PM

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411 411 The court 287 Disagreeing with Acacia’s Disagreeing with . sought to sort out the over- 286 nd sent the the solicitations to to [the plaintiff’s] cellular tele-

283 The defendant, Acacia, had programmed its had programmed Acacia, The defendant, 284

In the plaintiff’s case, Acacia’s computers generated generated computers Acacia’s case, plaintiff’s In the The Telephone Consumer Protection Act of 1991 Consumer The Telephone at 833. at 833. at 833. at 838. at 840. 288 285 In contrast to the FTC’s rules, the FCC rules require the FTC’s rules, the FCC In contrast to the rules require the The court then considered the TCPA’s interaction with Joffe v. Acacia Mortgage Corp they that the TCPA did not apply because argued Acacia Id. Id. Id. Id. 282 316. § 16 C.F.R. 64.3100. § 47 C.F.R. 2005). App. Ct. (Ariz. 831 121 P.3d Corp., Mortgage Acacia Joffe v. 282 283 284 285 286 287 288 M K the CAN-SPAM Act. The court found that Congress believed believed that Congress found court The Act. CAN-SPAM the ‘dual- and the TCPA Act would have “CAN-SPAM the that phone. By pairing its computers with SMS technology,phone. By pairing its computers Acacia did dialing telephone automatic an used It TCPA prohibits. the what tele- cellular to a assigned number a telephone to call system phone.” focus is placedidentification on requirements. For example, under the FTC’s CAN-SPAM Act rules all marketing messages must identify the sender and must include opt-out an mechanism. sender to have the consent of the recipient. Although the FCC al- FCC rule under identification, provide to sender the so requires the must message clearly identify the sender that the so recipient the has obtained indeed sender the that determine reasonably can recipient’s consent. his cell phone number, “(602)XXX-XXXX,” plus his cell phone a carrier’s domain name, “att.net,” a text message is sent that “[w]hether reasoning, the court held phone-to-phone or Internet-to-phone, the end result is the same. The recipient’s cellular telephone carrier forwards what is an SMS message to the recipient’s cellular telephone.” then held, “Acacia took advantage of Internet-to-phone SMS its computer generated guaranteed that technology – technology text messageswould be delivered lapping statutes. lapping ad- e-mail to consumer advertisements send e-mail to computers dresses. e-mail address [email protected]. AT&T thenconverted the e-mails into text messages, whichplaintiff received the on his phone. covered are e-mails and plaintiff, the to an e-mail sent had merely TCPA. the and not by CAN-SPAM Waller Article4.docx (Do Delete)Not 2014 5/21/2014

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CT ON A FY app. (Sept. However, this 290 EGISTRY Vol. 26:3 Vol. R ONGRESS FOR C ALL ALL MPLEMENTATION I C OT ALL ALL N C EPORT TO O R D OT N available at available 19 FCC Rcd. 15927, 15933, § 16, 2004 WL WL 2004 § 16, 15933, 15927, Rcd. 19 FCC O , NNUAL NNUAL D A clear memorandum explaining the the explaining memorandum A clear A

ATIONAL , 292 N N ’ Rules andRegulations Implementing the CAN- OMM Loyola Consumer Law Review Law Loyola Consumer C citing citing The court acknowledged that the FCC had de- FCC had the that acknowledged court The 289 RADE T URSUANT TO THE

. P

( at 841

ED The FCC has issued rules in the past that make it clear in theThe FCC has issued rules past that make ad- be should FCC rule FTC and between overlap The 291 Id. Id. Id. F

2004 291 292 289 290 MPLEMENTATION OF THE http://www.ftc.gov/sites/default/files/documents/reports/national-do-not-call- 2005), 2005), AND I FTC and FCC’s positions on the application of CAN-SPAM and on the application FTC and FCC’s positions the TCPA to new technology would better serve both consumers alike. and businesses cided to regulate Internet-to-phone SMS messages under § 14 of 14 of under § messages SMS Internet-to-phone cided to regulate the CAN-SPAMAct because they are initially directed to an ad- an Internet domain reference.dress that contains TCPA of the applicability to Inter- the did not preempt decision net-to-phone text messages. Moreover, “[a]pplication of the TCPA to Internet-to-phone not render the SMS messages does CAN-SPAM Act’s regulation superfluous” be- of such messages cause the CAN-SPAMis “broader Act than the TCPA.” The uninvited all to applies Act CAN-SPAM “[t]he noted, court MSCMs. In contrast, the to TCPA applies only those calls made system or an artificial or prerecorded using an automated dialing voice.” that the use of certain regardless of the technology is prohibited content being delivered. In the above case, Acacia have be- may became ultimately they though (even e-mails sending that lieved by the FCC that text messages) was legal. A clear rule issued states a text message received by a recipient is subject the to es- would clearly sent, is it in which manner the TCPA, no matter oper- could member industry an which within bounds the tablish ate. published and FCC have FTC The two agencies. by the dressed regulatory past concerning the in understanding of memoranda and enforcement efforts. applicability.’” Waller Article4.docx (Do Delete)Not 412 5/21/2014

1794922 (2004)). (2004)). 1794922 TCPA the and Act of 2003 SPAM registry-annual-report-congress-fy-2003-and-fy-2004-pursuant-do-not- call/051004dncfy0304.pdf (FCC – FTC Memorandum of Understanding: Tel- of Understanding: Memorandum – FTC (FCC call/051004dncfy0304.pdf emarketing Enforcement (Dec. 2003)). 35126-lcr_26-3 Sheet No. 39 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 39 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 40 Side A 06/02/2014 15:10:17

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413 413 available at available artificial/prerecorded devices. With approximate-

293 phone numbers.” The bill’s spon- technologies in contacting wireless D. Amending the TCPA TCPA the D. Amending

294 Exempting informational calls from the re- Exempting informational calls striction on auto-dialer and voice calls to wireless numbers; Clarifying the “prior express consent” requirement to ensure that the TCPA facilitates com- busi- and the consumers between munications and to interact; choose they with which nesses as- use of against the the prohibition Continuing sistive technologies to make telemarketing calls to wireless numbers.” 1. Protect BanCell Phones: No Exceptions to The Telephone Consumer Protection Act of 1991 Consumer The Telephone

x x x Congressman Terry stated “[u]nfortunately, the [TCPA] the [TCPA] Congressman Terry stated “[u]nfortunately, In addition to more effective FCC rulemaking and ex- an that 2011 2010 and late in legislation Congress debated Id. Press Release, U.S. Congressman Lee Terry, The Mobile Informational 293 294 M K restricts informational calls to mobile as their primary wireless phones on ly 40% of consumers relying or exclusive communications device, outdated the TCPA’s re- striction on the use of assistive far more now doing is purposes for non-telemarketing consumers harm than good.” panded role for the FTC, statutory amendments are necessary to necessary are amendments FTC, statutory the for role panded The following addresses technology. changing address new and amendments potential and new amendments proposed existing regulation strengthen TCPA and that would clarify of new and existing technologies. cell consumers’ to afforded protections the limited have would of 2011 (MICA) Act Call Informational The Mobile phones. Had in- “permit TCPA to the amended have would it enacted, been formational calls to mobile tele was designed bill that the explained Terry, Lee sor, Congressman timely in a information important with consumers “[p]rovide to TCPA by: the modernize and “would manner” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 http://leeterry.house.gov/news/documentsingle.aspx?DocumentID=359628. http://leeterry.house.gov/news/documentsingle.aspx?DocumentID=359628. Call Act of 2011 (Oct. 11, 2011), Call Act 11, 2011), of 2011 (Oct. C Y 35126-lcr_26-3 Sheet No. 40 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 40 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 40 Side B 06/02/2014 15:10:17

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available at available Although the Although the 295 Vol. 26:3 Vol. eting regulation; it is available at available portant to acknowledge the ongo- the portant to acknowledge Allowing consent to be given by a a by given be to consent Allowing 296 an FCC petition to seeking allow third Loyola Consumer Law Review Law Loyola Consumer A letter sent to by 54 Attorneys Congress signed General The TCPA is more than just telemark The FCC should prior, require express written consent for There is currently distraction.gov; 2009 study by the National Highway Traffic Safety Safety Traffic Highway the National by study 2009 distraction.gov; Letter from the National Association of Attorneys General to Congress to Congress General of Attorneys Association National the from Letter GroupMe, Inc., Petition for Expedited Declaratory Ruling and Clarifi- 2. Protect Express Consent Required Cell Phones: Prior 295 296 citing citing third party is not true consent, and would lead to significant con- significant to lead and would consent, true not is party third a potential to exposed be not should Consumers confusion. sumer messages flood of unwanted text that might legally be sent a (i.e., relationship a business through derived through “consent” text message EBR)FCC and or from a third The Congress party. parties to provide the consent required for sending an unsolicited unsolicited an for sending required consent the to provide parties text messagea recipient. to outlined the danger of robocalls to cell phones result as a of the “inevitable increase in calls to wireless phones.” ing efforts to change the TCPA, and the impact amendments statute. on the have would to phones cell Opening statute. protection consumer an important more calls throughEBR or similar exemption an drastical- would ly increase the amount of calls a consumer could receive. MICA, heightened The enacted. be not should it, like and legislation justify a phones for cell concerns safety and privacy, cost-shifting, continued scheme strict consent with respect to such communications. any commercial message received as a text message by a recipi- telemar- regulate to proposed been have Various techniques ent. keting technology. Company-specific opt-out schemes have proven inefficient when applied to both junkand faxes telemarketing The con- messages. text to applied be not and should regulation text mes- unwanted the initial the cost of bear sumer would still Thus, opt-out. to company each contact to have and would sage an EBR or other exception to a pure consent-based scheme for text messaging is inappropriate. Waller Article4.docx (Do Delete)Not 414 it is im not pass, did legislation 5/21/2014 http://apps.fcc.gov/ecfs/document/view?id=7021871907. http://apps.fcc.gov/ecfs/document/view?id=7021871907. http://signon.s3.amazonaws.com/20111207.signon.Final_HR3035_Letter.pdf http://signon.s3.amazonaws.com/20111207.signon.Final_HR3035_Letter.pdf ( Administration indicated that cell phone use was involved in 995 fatalities (or (or 995 fatalities in involved was use phone that cell indicated Administration 18%) in distraction-related accidents). (Dec. 7, 2011), 2011), 7, (Dec. 2012), 1, Mar. (filed 02-278 No. CG Docket cation, 35126-lcr_26-3 Sheet No. 40 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 40 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 41 Side A 06/02/2014 15:10:17 PM

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415 415 47 C.F.R. § 64.1200(f)(5)(ii) be able to establish that an be able to establish that an place that great of a burden of a burden great that place see also see also The principle same may gener- 297 prior business relationship pretty prior business EBR considering whether a company has an a company has an whether considering any S11957, 11964 (daily ed. Sept. 25, 2003) (statement of of (statement 2003) 25, Sept. ed. (daily 11964 S11957,

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. ONG The Telephone Consumer Protection Act of 1991 Consumer The Telephone By placing a one-year time the limit on junk fax EBR, Some may advocate completely removing the junk fax fax junk the removing completely advocate may Some A time limit on the junk fax EBR would be a simple and and be a simple the junk fax EBR would A time limit on amount of record an increased require While this would 298 68 Fed. Reg. 4594 (Jan. 29, 2003); 29, 2003); Reg. 4594 (Jan. 68 Fed. 149 C 297 298 3. Increasing Clarity: Placing a Time Limit on the Junk Fax Junk Limit on the a Time Clarity: Placing 3. Increasing M K on an entity that was required to prove the existence of an EBR in the first place. EBR. However, this would come at a great cost to entities that send unsolicited advertisements pursuant EBR with little to the actual impact on the tide of the current problems facing the TCPA. The EBR is not the greatest source of fax prob- the junk EBR exists in the event of a challengebrought consumer. by a Recognizing the ease in which an EBR may be created, Senator back, coming going to people are be “[t]here Dodd remarked, once they discover that . [that] are going to be . . the exception to occur much will allow fur- down loophole the close back and even come asking us to ther.” not but does is closed, this loophole must keep strict, opt-in a consentbased scheme for the regulation of text messages. In practical improvement. a “after limit: time EBR fax to a junk respect with sought ally be re- to surprised be consumer would the time, of period certain ceive an unsolicited advertisement fax from this entity?” The an- not ex- does consumer that the be almost assuredly would swer pect to receive an unsolicited advertisement after over a year has show- facts (without additional passed since the EBR was formed during that time).ing that there is a continued relationship fax an unsolicited wishing to send those businesses, by keeping to an EBR must already pursuant EBR with a consumer, theFTC characterizes theissue as fol- find and call that by surprised be likely consumers lows: “would on the number telephone their having placed with inconsistent it national ‘do-not-call registry’?” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 (2011) (the FCC’s rules provide: an “established business relationship with a with relationship business “established an provide: rules FCC’s (the (2011) particular business entity does not extend to affiliated entities unless the [consumer] would reasonably expect them to be included”). Sen. Dodd) (emphasis added). C Y 35126-lcr_26-3 Sheet No. 41 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 41 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 41 Side B 06/02/2014 15:10:17 M K PM In

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(2010). (2010). Vol. 26:3 Vol. consumers on behalf of of on behalf consumers 0.4(b)(1)(iii)(B)(ii) see also Taylor v. XRG, Inc. see also Taylor g the TCPA. As a result, com- C.F.R. § 31 C.F.R. ce of illegal use of its system.

299 Loyola Consumer Law Review Law Loyola Consumer

301 The immense amount of junk faxes that have been sent sent been have that faxes junk of amount immense The to liability under subject would only be Common carriers A time limit placed on the junk fax EBR, based on the Do- to the following in be limited The Junk Fax EBR should Sales Rule, Telemarketing 16 Rules and Regulations Implementing the Telephone Consumer Protec- Rules & Regulations Implementing the Telephone Consumer Protec- 299 300 301 4. Increase Effectiveness: Targeting Junk Fax Broadcasters Fax Junk Targeting Effectiveness: 4. Increase others. The FCC originally concluded that common carriers facilities to transmit fax adver- transmission simply providing of a high degree absence in the liable be held not would tisements of involvement or actual noti over the past twenty or more years is due largely in part to “fax part to “fax in largely years is due more over the past twenty or that send faxes to parties blasters,” third similar circumstances of illegal of involvement or actual notice 2003, the FCC amended its rules “to state explicitly that a fax its rules “to state explicitly that a fax 2003, the FCC amended is a fax [only] if there for an unsolicited liable will be broadcaster high degree of involvement or actual notice on the part of the broadcaster.” lem. Current indicate lawsuits that those violating the are TCPA the know of of would not the unaware TCPA (and thus either EBR) or are violatin intentionally Waller Article4.docx (Do Delete)Not 416 pletely removing the EBR may not have that of a practical great effect on increasing compliance. confusion consumer both reduce EBR, would Registry’s Not-Call a without do so and would advertisements, fax and unwanted 5/21/2014 imposed limit The time members. industry on burden significant should recognize that an would EBR where last longer the con- step in communicating active a more taken has sumer-recipient for adopted be following should Accordingly, the sender. with the the junk fax EBR: or leased rented, “(i) purchased, the recipient where instances entered into a financial trans- the seller or goods or services from immediately months eighteen the within seller the with action made an “in- telemarketing call; or (ii) preceding the date of the by the offered or service product a regarding quiry or application seller, within the three months immediately preceding the date of a telemarketing call.” 21, 2007). June Ohio App. of (Ct. 1816142 WL tion Act of 1991, 7 F.C.C. Rcd. 8752, 8779; 8779; 8752, Rcd. 7 F.C.C. Act of 1991, tion 2003). 25, (July 44,169 Reg. 41,144, Fed. 68 1991, Act of tion 35126-lcr_26-3 Sheet No. 41 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 41 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 42 Side A 06/02/2014 15:10:17 PM

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see also see also 417 417 . . . to use any ue ‘sender’ of the the court rejected The plaintiffs ar- 310

307 , 309 any person rpretations, the FCC clari- rpretations, 121 F. Supp. 2d 1085 (W.D. Tex. , the defendant allegedly sent sent allegedly defendant , the

held liable for any of the faxes faxes any of the for liable held In response, the pointed plaintiffs to 306

The defendant argued that because it it because that argued defendant The ssage, that common carrier will not be li- carrierssage, that common not will 304 dvertisements to plaintiffs over its “fax “fax over its to plaintiffs dvertisements 305 On plaintiff’s motion for summary judgment, 47 C.F.R. § 64.1200(f)(8)); Covington & Burling Inter- v. & Burling Covington § 64.1200(f)(8)); 47 C.F.R. 308 47 U.S.C. § 227(b)(1)(C) (2011) (emphasis added). (2011) (emphasis 227(b)(1)(C) U.S.C. § 47 citing 840. 840. 841. The FCC concluded that “if a common is mere- carrier Texas v. American Blastfax, Inc. Protus IP Solutions, Inc. quoting quoting The Telephone Consumer Protection Act of 1991 Consumer The Telephone ( 302 Consistent with previous inte previous Consistent with In In Id. at Id. Id. Id. at 303 Pasco v. Protus IP Solutions, Inc., 826 F. Supp. 2d 825, 831 (D. Md. Md. (D. 825, 831 2d Supp. 826 F. Inc., Solutions, IP Protus v. Pasco Inc., Blastfax, American v. Texas Taylor v. XRG, Inc., No. 06AP-839, 2007 WL 1816142 (Ohio Ct. App. Ct. App. (Ohio 1816142 WL 2007 06AP-839, No. Inc., XRG, v. Taylor ImplementingRules & Regulations the Telephone Consumer Protec- Ct. App. (Ohio 1816142 WL 2007 06AP-839, No. Inc., XRG, v. Taylor 305 306 307 308 309 310 302 303 304 M K the defendant’s that argument the“fax broadcaster exception”

activity. a unsolicited facsimile and not a tr was “merely a ‘fax broadcaster’ not be it could in question,” faxes facsimi- to a telephone . . . to send, facsimile or machine telephone advertisement.” an unsolicited machine, le the court held that defendant the met the definition “fax of FCC’s regulations. the under broadcaster” ly providing the network over which a subscriber [for example, a example, a subscriber [for a over which the network ly providing an sends or entity] business, individual, or other fax broadcaster me unsolicited facsimile able.” fied the definition of “sender” to mean the personor entity on or services are transmitted or whose goods fax is whose behalf the advertised or promoted. transmission system.” to plaintiffs. sent allegedly the text of the TCPA: it is “unlawful for Waller Article4.docx (Do Delete)Not 2014 5/21/2014 gued that “because faxes at issue the were technically sent is the defendant] [the software, faxing defendant’s] [the through sent faxes for any unwanted liable and is necessarily sender true over its system.” 2011). 2011). tion Act of 1991, 68 Fed. Reg. 41,144, 44,169 (July 25, 2003); see Kaufman v. v. Kaufman see 2003); 25, (July 44,169 41,144, Reg. Fed. 68 1991, Act of tion 296 (2003); 886, 2 Cal.Rptr.3d 110 Cal.App.4th Inc., Systems, ACS June Ct. App. (Ohio 1816142 WL 2007 06AP-839, No. Inc., XRG, v. Taylor 21, 2007). 2000).

June 21, 2007). 21, 2007). June ( 21, 2007) June natl. Marketing & Research, Inc., No. CIV.A. 01-0004360, 2003 WL 21384825 21384825 2003 WL CIV.A.No. 01-0004360, Inc., & Research, Marketing natl. the well as as liability on the sender of faxes (D.C. Super. Ct. 2004) (imposing companies whose products were advertised). C Y 35126-lcr_26-3 Sheet No. 42 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 42 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 42 Side B 06/02/2014 15:10:17

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Vol. 26:3 Vol. effective statute in this effective statute in this pported either an effort to

312 provision or efforts to cap TCPA to cap efforts provision or of numbers will increase compli- of numbers will Regulating Faxing Activity Under State and Fed- Loyola Consumer Law Review Law Loyola Consumer and Statutory Damages Provision and Statutory Damages Provision 1089-90. 1089-90.

and advocates a more balanced approach to junk fax junk to approach balanced a more and advocates The TCPA would be a more be a The TCPA would The private right of action damages The private right of and the statutory Targeting the cause of junk faxes, the regu- the TCPA of faxes, places junk the cause Targeting The TCPA would be a more effective statute by increasing Id. at Id. 314 For instance, where the company is a new company, but provides a list Brandee L. Caswell, 313 311 312 313 314 5. Responding to Criticism: Preserving Private Right of Action Preserving 5. Responding to Criticism: remove the statutory damages statutory damages the remove laments the side one while amount. Indeed, liability at a preset “cottage industry” of TCPA litigation that has arisen in recent years provision of the TCPA receive theamount largest of criticism. In many su interviews with practitioners, Therefore, the court held that the defendant was “more than a faxes.” party for third conduit mere mirror CAN-SPAM’s prohibitions on e-mail sense, and it would harvesting. applied. The court concluded that because the company’s “busi- company’s the because that concluded court The applied. unsolicited to send a fax machine around using center[ed] ness the TCPA,” by the outlawed conduct precise advertisements—the company “[wa]s more than a common carrier or service provider fax recipient of database a use[d] and maintain[ed] it] [because and presum- advertisers party third solicit[ed] actively numbers, ably review[ed] the content of the fax advertisements it sen[t].” Waller Article4.docx (Do Delete)Not 418 5/21/2014 to is similar which content, fax junk the of creators on the lations regulation. telemarketing on “sellers” in the regulations placed and are cur- of junk faxes the “source” the are Fax broadcasters whether determine to incentive little very with presented rently TCPA. In fact, fax the under legal are are sending they faxes the of the willfully ignorant to remain reason every have broadcasters status of the faxes being sent because the higher degree of in- the client’s faxes, its has with broadcaster volvement that a fax to more likely it will be subject TCPA liability. companies. regulations on fax broadcasting Holding fax broadcasters liable where it is obvious that does their not client possess list an EBR with the large ance. of telephone numbers that would it be impossible fornew a company to have created EBRs with in such a short time.

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318 13 316 2:30

Protec- RIEF Despite Despite 419 419 Rev. 70, 91, 70, 91, Rev. 317

, 537 S.E. 2d 2d , 537 S.E. L. , 35 B

. . 345, 383 (2006). (2006). 383 . 345, EB EV R

L. , 90 N , 90

Yuri R. Linetsky, . available at available ROOK The Unsettling Fax About Cov- About Fax Unsettling The see also also see potential for large damages, large for potential One court has noted: has noted: court One , 72 B 319 Protection of “Innocent Lawbreakers”: of “Innocent Lawbreakers”: Protection ly have on courts – particularly – particularly on courts ly have To Fax or Not to Fax: Analysis of the Regu- the of Analysis Not to Fax: or To Fax Regulating Faxing Activity Under State and State and Under Activity Faxing Regulating . 835, 859 (2007). (2007). 859 . 835, Faxing It In Faxing . 63 (Dec. 2005); 2005); (Dec. . 63 EV AW R

. 63 (Dec. 2005). . 63 (Dec. 2005). L Rev. 70, 91, n. 133 (2011). (2011). 133 n. 70, 91, Rev.

. L. AW L.

L .

. OLO ALL Yuri R. Linetsky, EB H the other side bemoans Congress’ decision to “over- Congress’ decision bemoans side other the discussing Hooters of Augusta, Inc. v. Nicholson Augusta, of Hooters discussing OLO Michael R. Laudino, 315 ; , 34 C Brandee L. Caswell, , 90 N , 90 The Telephone Consumer Protection Act of 1991 Consumer The Telephone ETON ETON , 34 C A TCPA plaintiff does not need to prove receipt of a junk Most of the criticism is levied the on the impact of class ac- See e.g., See William Adler, et al. v. Imak Wireless, (D.C. Super. Inc., No. 14719-01 Michael J. Rust and Pamela Webb, S. Jennifer A. Williams, Ostensibly, TCPA’s purpose is to protect the individual individual the protect is to TCPA’s purpose Ostensibly, preventing and discouraging by consumer telephone mid- in the come which calls annoying telephone those en- an fill which pitches sales prerecorded of dinner, dle , 37 S , 318 319 315 316 317 M K

lations and Potential Burdens Imposed by the Junk Fax Prevention Act of Act Prevention Fax Junk by the Imposed Burdens Potential and lations 2005

Law eral regulation, have an actionable claim. Manyfax in order to claim that the TCPA represents “too strong of a hammer” given the ease in and the a violation demonstrating by those suffered harm amount of actual small relatively and the receiving a fax advertisement or unwanted phone call. find sup- even critics practices, intrusive reducing in its impact port amongst some members of the judiciary. One court com- for the foresight of lack a conspicuous with mented, “[i]n 1991, ultimate that it would impact – Branch Claims Small our like courts of limited jurisdiction . . . .” Act Protection Consumer Telephone the passed Congress look well-established consumer protection policies of privacy and and privacy of policies protection consumer look well-established JFPA in 2005. amending the TCPA with the cost-shifting” by Waller Article4.docx (Do Delete)Not 2014 5/21/2014 In fact, tion mechanism in TCPA litigation. two authors com- remarked,menting on one TCPA lawsuit out as a started “What a night- became beer and burgers one-page fax offering discount mare of eight-figure proportions.”

(Winter 2006) ( 2006) (Winter 2000)). App. 245 (Ga. 468, erage Claims Under Claims erage the Telephone Consumer Protection Act Striking the Right Balance in the Private Enforcement of the Anti- “Junk Fax” “Junk Fax” the Anti- Enforcement of the Private Balance in Striking the Right Act Protection Consumer Telephone the of Provisions Federal Law

n. 133 (2011) n. tion of “Innocent Lawbreakers”: Striking the Striking En- the Right Balance in Private tion of “Innocent Lawbreakers”: Pro- Consumer Telephone the of Provisions Fax” “Junk Anti- the of forcement Ct. 2007), Ct. 2007), http://www.groklaw.net/articlebasic.php?story=20071111092540787. tection Act tection C Y 35126-lcr_26-3 Sheet No. 43 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 43 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 43 Side B 06/02/2014 15:10:17 M K PM

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which which 323 , Neverthe- 325 ed faxes ed faxes Agostine v. Sidcon Forman v. Data v. Data Forman Vol. 26:3 Vol. seems to suggest See court cited the deci- , Congress amended TILA by Ratner asons. However, it appears However, it appears asons. Forman ion, a potent class-action ion, a potent Ratner, 54 F.R.D. at 416) (class cer- (class 416) at 54 F.R.D. Ratner, Ratner pe, and unsolicit pe, and to certify a class action in TCPA citing citing Ratner v. Chem. Bank Trust Co.,Ratner v. N.Y. 54 F.R.D. 412, court’s citation of In so noting, the Loyola Consumer Law Review Law Loyola Consumer court refused allow TCPA to actions based class 322 the court held that “[a] class action would be in- be action would “[a] class that held court the citing citing

321

, 164 F.R.D. at 405 ( 405 at 164 F.R.D. 320 , Forman 324 at 405 ( at 405 Forman Ratner v. Chemical Bank New York Trust Co. The Arguments concerning class actions are not unique to the to the not unique are actions class concerning Arguments Courts have declined Id. inappropriate for TCPA violations. In violations. In for TCPA inappropriate Ratner, 54 F.R.D. at 416. 416. at 54 F.R.D. Ratner, Forman the decision in after Interestingly, Joseph N. Main P.C. v. Elec. Data Sys. Corp., 168 F.R.D. 573, 575 575 573, F.R.D. N. 168 Joseph Corp., P.C. v. Elec.Main Data Sys. 1995). Pa. (E.D. 400 F.R.D. 164 Inc., Data Transfer, v. Forman tire answering machine ta machine tire answering in a . However, . . . and ink paper time, waste which enterpris- best classic case of the awry, laid going plans gleaned, from the seeminglying attorneys have harmless protect of consumer packaging weapon. 323 324 325 320 321 322 “den[ied] class certification where the Truth in Lending Act’s forminimum award of $100 each some 130,000 class members un- punishment,’ annihilating possibly an ‘horrendous, be would related to any damage to the purported to anybenefit class or to defendant.”

consistent with the specific and personal remedy provided by by provided remedy and personal specific the with consistent facsimile of unsolicited minor nuisance the to address Congress advertisements.” that the of damages. of a large award prospective the upon TCPA. A significant amount of case law has been devoted to the the to devoted been has law case of amount TCPA. A significant of TCPA class actions. relative appropriateness re different for several causes of action that only one court has determined class actions that are virtually per se Transfer, Inc. Waller Article4.docx (Do Delete)Not 420 5/21/2014 sion in

(N.D. Tex. 1996). Tex. 1996). (N.D. tification denied where the Truth in Lending Act’s minimum award of $100 each for about 130,000 members class would be a “horrendous, possibly annihilating punishment, unrelated to any damage to the purported class or to any benefit to defendant.”). re- aggregate the permissible limiting and action class authorizing expressly of worth net of the 1 percent or of $100,000 lesser to the action a class in covery the class action defendant found in violation of TILA. 416 (S.D. N.Y. 1972) (class certification denied where the Truth in Lending Lending in where Truth the denied certification (class 1972) N.Y. 416 (S.D. be would members 130,000 class about for of $100 each award minimum Act’s a “horrendous, possibly annihilating punishment, unrelated toany damageto the purported class or to any benefit to defendant.”). 35126-lcr_26-3 Sheet No. 43 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 43 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 44 Side A 06/02/2014 15:10:17 a PM

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421 421 , 54 F.R.D. , 54 F.R.D. unsuitable for for unsuitable held that “[t]he

per se this action further in- this action further Cellco P’ship Cellco Kaufman v. ACS Sys., Inc. v. Kaufman held “[i]t would be manifestly unjust to held “[i]t would

Similarly, the Fifth Circuit held “viola- Similarly, the Fifth Circuit 328 330 See, Bank N.Y. Ratner v. Chem. Trust Co. court’s focus court’s on the “specific andpersonal reme- Similarly, the court in Similarly, the 924. 924. 326 The TCPA [. . .] anticipates damages on individual an . The TCPA [. The Telephone Consumer Protection Act of 1991 Consumer The Telephone

Forman 327 Other courts have responded differently as to whether al- as to whether differently responded have courts Other Id. Id. at Freedman v. Advanced Wireless Cellular Commc’ns, No. SOM–L– Cellco P’ship v. Wilcrest Health Care Mgmt., (MLC), No. 09-3534 Rptr. 3d 296 2 Cal. Kaufman4th 886, 110 Cal. v. ACS Sys., App. Inc., 326 327 328 329 330 M K California state court held “[a] class action in superior court court in superior class action held “[a] California state court like action, A class expectations. Hollings’s Senator would fulfill claimants’ ‘small would provide court, claims in small a dispute redress.” with proper are no in- there also illustrate, cases but, as these resolution class filed case particular a suitability of the regarding rules variable unique the TCPA class treatment; the for of subsection this under tions of § 227(b)(1)(C) of the TCPA are not the TCPA of tions of § 227(b)(1)(C) a legis- represents amendment (“The Pa. 1975) 444 (E.D. 437, F.R.D. 69 Corp., in certification action class denying decisions judicial to those response lative an limitation aggregate places it time, same At the .] . [. cases Lending in Truth a credi- on worth net creditor’s of a centum 1 per or $100,000 of lesser of the tor’s class action liability, not involving actual damages, thus avoiding the ‘annihilating punishment’ that could be caused by a damage award of at least member. class $100 per less, the less, the with was concerned court that the TCPA indicates the dy” of of the original statutory scheme. part were whether class actions A New Jersey state court judgment (including at- to a $23,000,000 subject [the defendant] torney’s fees) for damagesentire to an class of plaintiffs when individual by pursued of $500 to be damages Congress intended plaintiffs.” scale of damages soughtthe Plaintiffs by in dicates that Plaintiffs do not fall into the zone of interests of the TCPA. natural individual an is plaintiff contemplated the because basis on which lines phone of number a limited with or business person it might receive telemarketing calls. Congress contemplated that without court claims small in bring claims would TCPA plaintiffs the aid of an attorney.” Waller Article4.docx (Do Delete)Not 2014 5/21/2014 inconsistent for TCPA violations would be actions lowing class intent. In with Congress’ original 611–02, 2005 WL 2122304 (N.J. Super. Ct. Law Div. June 24, 2005). Div. June (N.J. Super. Ct. Law 24, 2005). 2122304 WL 2005 611–02, 2012). 8, May (D.N.J. 1638056 2012 WL (2003).

412, 416 (S.D.N.Y.1972).”)(internal citations omitted) citations Today, limits the TILA (S.D.N.Y.1972).”)(internal 412, 416 1 or of “$500,000 lesser to the action a class in recovery aggregate permissible § 1640(a)(2)(B). 15 U.S.C.A. creditor.” of the worth net of the centum per C Y 35126-lcr_26-3 Sheet No. 44 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 44 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 44 Side B 06/02/2014 15:10:17 M K PM

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332 , considered at- Vol. 26:3 Vol. Hot Leads tal to the statute. statute. pro- tal to the The ides a significant deterrent, deterrent, significant ides a and the Fair Credit Report- Credit Fair and the 333 the federal federal TCPA, (2) statutory the entional violators of the of the TCPA, violators entional s amount would likely have little little have s amount would likely the court awarded the plaintiff dam- plaintiff the awarded court the Jemiola Loyola Consumer Law Review Law Loyola Consumer the TCPA does not contain a fee-shifting provision. provision. a fee-shifting contain not TCPA does the

334 331 Finally, with respect to TCPA damages, some attorneysrespect to TCPA damages, with Finally, The TCPA combines statutory damages, strict liability, Onthe other hand, increasing statutory damages the Similarly, in Gene and Gene LLC v. Biopay LLC, 541 F. 3d 318, 328 (5th Cir. 2008). 2008). Cir. (5th 328 318, 3d 541 F. LLC, Biopay v. LLC Gene and Gene Truth in Lending Act, 15 § U.S.C. 1601 et seq. § 1692. Act, 15 U.S.C. Practices Collection Debt Fair seq. et 1681 § Act, 15 U.S.C. Reporting Credit Fair Supp. 584 F. Tel. Co., LLC, Baltimore-Washington Co. v. Hot Leads 335 331 332 333 334 335

Fair Debt Collection Practices Fair Debt Collection Practices Act, ing Act, torney’s fees in the context of the MarylandTCPA, which pro- may not violate a person (1) vides reasonable attorney’s (3) violation, and damages of $500 per fees. ages in the amount $9,000 for violations of the TCPA, $1,200 for Numerous individuals interviewed during the course of of re- this course the during interviewed individuals Numerous the effec- increase a provision would such that advocated port where awarded been have TCPA.the fees of Attorney’s tiveness of a state TCPA violations the plaintiff has successfully alleged counterpart. For instance, the court in increasing the statutory the damage increasing effect. con- other Unlike provision. a for fee-shifting advocated have Act, Lending in Truth as the such statutes protection sumer facts of eachfacts of generally case certification determine is whether will proper.” and the class action mechanism to provide a high level of con- viola- prosecute to consumers for and incentive protection sumer to the ability or of damages the level reducing or tions. Removing detrimen be would action bring a class especially given the FCC’s limited enforcement efforts. Class ac- illegality of certain and the to the TCPA bring attention tions also compliance increases statute the to attention Increased conduct. members by industry awareness by consumers, and increases enforcementwhich is important where efforts rely so heavily on violations. reporting consumers The amount of damages already be inappropriate. amount would is no to believe and there reason serves as a significant deterrent, that increasing the would damages increase this effect. Moreover, of int amount increasing the given Waller Article4.docx (Do Delete)Not 422 class action suit prov spect of a large 5/21/2014

2d 736, 740 (D. Md. 2008). 2008). Md. (D. 740 736, 2d 35126-lcr_26-3 Sheet No. 44 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 44 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 45 Side A 06/02/2014 15:10:17 PM

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Fur- 336 338 423 423 Moreover, fee- 337 these entities is the mandatory appears more than an adequate appears more than FTC Offers $50,000 Reward to Help Stop Ro- Stop Help to Reward $50,000 Offers FTC carriers that wish to permit customers to manipulate carriers that wish to permit customers Lauren Silverman, The Telephone Consumer Protection Act of 1991 Consumer The Telephone One suggestion for tracking forIncreasing logging requirements those carriers that al- Data suggests that fee-shifting provisions do not provide a provide do not that fee-shifting provisions Data suggests diffi- increasingly TCPA violators has become Tracking See , NPR (Jan. 02, 2013), www.npr.org/2013/01/02/168444025/reward- 2013), 02, (Jan. , NPR Jemiola v. XYZ Corp., 126 Ohio Misc. 2d 68, 2003-Ohio-7321, 802 802 68, 2003-Ohio-7321, 2d Misc. 126 Ohio Corp., XYZ v. Jemiola in- enough a large has already TCPA plaintiff potential the Arguably, 6. Responding to New Practices: Caller ID Manipulation Caller ID Manipulation 6. Responding to New Practices: 337 338 336 M K

violations of the Ohio CSPA, and $7,250 in attorney’s fees. $7,250 in attorney’s and of the Ohio CSPA, violations thermore, some entities manipulate their ID. While there caller are legitimate reasons for manipulating caller ID, consumers regulation. by increased served better be would the likelihood increase will which bonds, posting of logging and thatidentified. anbe entity will Such a requirement wouldbe levied on the their outbound ID. The caller require regulation would such carriers to collect a significant bond from each such customer. Legit- Compa- a bond. posting no burden have should companies imate from deterred be TCPA would the flout to planning are that nies start-up costs are much higher; doing so for two reasons: (1) initial that it is vi- it is determined bond if the will lose entity and (2) the olating the TCPA. abil- the improve also ID would caller to manipulate low entities would increase requirements TCPAity to track violators. These Waller Article4.docx (Do Delete)Not 2014 case. a TCPA to bring significant incentive to provide a significant increase not seem do shifting provisions of this re- goal main the TCPA, which is the in compliance with provisions that fee-shifting appears It port’s recommendations. lit- during conduct attorney on regulating impact of an more have initial violation. Preserving preventing the igation than actually 5/21/2014 actions of class the availability fee shiftingsubstitute for new provisions. the TCPA knowingly violating cult. Many companies that are proof. judgment off-shore and are essentially will operate centive to bring a case given the relative ease of establishing most TCPA viola- a TCPA plaintiff. by suffered harm low actual the and tions bocalls up not like the we grew are calls (“These offered-to-help-stop-robocalls N.E.2d 745, at ¶ 33. at ¶ 33. 745, N.E.2d with . . . They are computer-blasted. calls that. are enabledwith by the Internet. The dialers are outside the U.S. generally, and these dialers are capable of blasting out an unfathomable number of telephone calls.”). C Y 35126-lcr_26-3 Sheet No. 45 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 45 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 45 Side B 06/02/2014 15:10:17 M K PM

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Vol. 26:3 Vol. er ID manipulation that person in case the

pport continued enforcement reasing access by made possible TCPA to continue to remain rele- ONCLUSION tities that enable call C Loyola Consumer Law Review Law Loyola Consumer Increase government enforcement of the TCPA x The TCPA has remained relevant for over twenty years ability to its by defined will be TCPA Going forward, the to made be should modifications and amendments Several During an interview conducted for this report, an example this report, for an example conducted During an interview provides a “chokepoint” in which illegal conduct may be cut-off conduct illegal in which a “chokepoint” provides re- bond this implement TCPA to the Amending deterred. and statute. the with compliance would improve quirement metal was stolen. Those metal recyclers that choose not to do to law no need violating the have that are with entities business entity to manip- a carrier that does not allow an worry. Likewise, ulate its caller ID would incur no extra cost of this increased en regulation. Regulating protect – to was enacted it which for premise basic the to due consumers from the ever-inc Through times. pertinent modern in technology – and remains the implementationof the Do-Not-Call Registry and of periods stepped-up government enforcement, the statute has curbed the fax advertisements. unsolicited and of robocalls abuses is in abuse potential the Whether phones. cell consumers’ protect a consumer’stheform of a robocall cell phone, to or a text mes- TCPA is clear. the for need the intent, fraudulent with sent sage con- protect intrusions, to limit privacy The TCPA is designed fundamental These advertising. cost-shifting prevent and sumers, basis to su purposes remain a strong (e.g., fax ma- older technology to both of the statute as applied forms of technology (e.g., cell and newer chines, residential lines) phones). the TCPA and the agencies tasked with its enforcement and interpretation. In order for the recommends: report this vant going forward, the probability that a violator is located. Carriers could also be also be Carriers could violator is located. that a the probability a ID is actually caller that any manipulated to verify required number. phone registered caller their that wish to manipulate those for bond a of requiring ID was likened Metal to metal recyclers. recyclers are confronted it as scrap. selling and copper stealing that are with individuals those require iden- metal recyclers instances As a result, in many tification from the scrapper—totrack later Waller Article4.docx (Do Delete)Not 424 5/21/2014 35126-lcr_26-3 Sheet No. 45 Side B 06/02/2014 15:10:17 06/02/2014 B Side No. 45 Sheet 35126-lcr_26-3 35126-lcr_26-3 Sheet No. 46 Side A 06/02/2014 15:10:17 PM

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425 425

339 entities that ena- forcement lead to in- should by providing State Attorneys General with a with General Attorneys State by providing larger incentive to bring TCPA cases, and em- TCPA; the suit under FTC to bring the powering of application of the TCPA Increase uniformity FCC and quicker frequent more by encouraging procedures; rulemaking pri- by requiring phones cell protect to Continue or expressany consent communication for (call a or text) made to cell phone; Fax Established Junk Place a time limit on the Business Relationship; Create incentives for fax broadcasting companies to determine whether the faxes theysending are of the TCPA; on behalf of clients are in violation Rebuff efforts to remove or otherwise modify the private right of action; and Place additional restrictions on ID manipulation. caller ble The Telephone Consumer Protection Act of 1991 Consumer The Telephone x x x x x x

By expanding the number of agencies responsible for the the for responsible agencies of number the By expanding Critchfield Physical Therapy v. Taranto Grp., Inc., 263 P.3d 767, 774 774 767, P.3d 263 Inc., Grp., Taranto v. Therapy Physical Critchfield 339 M K

statute’senforcement, along withincreasing the incentive to en bring TCPA claims, increased creased compliance. By providing more frequent and comprehen- frequent more By providing compliance. creased sive interpretationsof the statute, the FCC can remove the neces- as the legislation in gaps sort out sity to resort to the courts to the TCPA can updated, newer technology. Properly applied to still play a vital role against the “ever-increasing access through electronic means” that companies have to consumers. Waller Article4.docx (Do Delete)Not 2014 5/21/2014 (Kan. 2011). 2011). (Kan. C Y 35126-lcr_26-3 Sheet No. 46 Side A 06/02/2014 15:10:17 06/02/2014 A Side No. 46 Sheet 35126-lcr_26-3