The Golan v. Veritas Entertainment, LLC Ruling: Ensuring Your Firm’s Telemarketing Strategies Compliant
In June 2015, the US Court of Appeals for the Eighth Circuit determined in Golan v. Veritas Entertainment, LLC that the purpose rather than the content of a telephone solicitation identifies whether it is prohibited telemarketing under the Telephone Consumer Protection Act (TCPA). The case in issue arose from unsolicited, prerecorded telephone calls promoting the movie 'Last Ounce of Courage'.
The plaintiffs, Ron and Dorit Golan filed a putative class action complaint after they received unsolicited, prerecorded messages on their home telephone stating “Liberty. This is a public survey call. We may call back later.” The message is the shorter version of the message that was played to people who answered the call. The Golans alleged that Veritas Entertainment had initiated the phone calls as part of telemarketing campaign to promote the movie, violating the TCPA.
The district court dismissed the complaint, ruling that the Golans did not suffer injury because the messages did not contain an advertisement or solicitation that violates the TCPA and since they received the shorter version of the prerecorded message, the claims were not typical of the putative class members and they were therefore inadequate class representatives. However, the Eighth Circuit reversed, and held that although the calls were not considered as advertising because they did not mention property, goods or services, they would still qualify as "telemarketing" under the TCPA because the phone call was initiated to promote the movie.
This case serves as a reminder for firms to be compliant with the TCPA. Aside from the TCPA, firms should also be familiar with the Federal Trade Commission’s Telemarketing Sales Rule, the rule that protects consumers against fraudulent telemarketing calls. It is important to establish telemarketing strategies in compliance with these laws and rules in order to avoid class action lawsuits.
In this two-hour LIVE Webcast, a panel of distinguished professionals and thought leaders organized by The Knowledge Group will help companies understand the significant ruling of the Golan v. Veritas Entertainment, Speakers will also offer best practices in developing and implementing effective telemarketing strategies in compliance with the TCPA and the FTC’s Telemarketing Sales Rule.
In a two-hour LIVE Webcast, the speakers will discuss:
- Analyzing the Golan v. Veritas Entertainment Eighth Circuit Ruling
- Understanding the difference between 'advertisement' and 'telemarketing' under TCPA
- Strategic Telemarketing Compliance
- Overview of the FTC’s Telemarketing Sales Rule
- Updates on TCPA
Michelle Cohen, Member
- The Golans (the plaintiffs) received two unsolicited, prerecorded messages on their home phone line. These two messages allowed them to launch a nationwide class action.
- If I were a plaintiff’s attorney, I would have chosen different plaintiffs – someone who received the full message, then more clearly telemarketing/advertising.
- I would like to use this point of the two calls launching a class action as a starting point to review for the audience the basic parameters of the TCPA, with particular emphasis on the provisions imposing liability for prerecorded telemarketing calls to residences and prerecorded calls and autodialed calls (of various types) to mobile phones.
- If Mr. or Ms. Golan had been called on a mobile phone, how would their claims have been different?
- A court would not necessarily have had to decide whether the message was an advertisement or telemarketing. The TCPA’s provisions relating to mobile phones require prior consent for “any call” (except for emergency calls). While the type of consent varies based upon whether it is a marketing message or informational, if there is no consent, even an informational call or a “get out the vote” or survey call can be actionable. Defendants never claimed there was consent here.
- What if these phone calls had been live calls instead of recordings?
- I will discuss the difference under the TCPA between live calls and prerecorded calls.
- This includes differences between residential lines and wireless lines.
- Practical point – another issue is that the Golans were registered on federal and state do not call lists, but the marketing company here obtained their number through a database they purchased from Axiom.
- Reminder – purchased lists can easily lead to liability.
- If live telemarketing calls to residences, or live non-autodialed calls to wireless are intended, you still need to scrub federal and state do not calls lists unless you have prior express consent or an existing business relationship.
- If telemarketing calls are planned (autodialed which can include live) or prerecorded to wireless numbers – need prior express written consent – do not call lists not applicable.
- Could other courts differ on the Eighth’s Circuit’s analysis here?
The law says one cannot:
Initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call;
- Is made for emergency purposes;
- Is not made for a commercial purpose;
- Is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing;
- Advertisement - any material advertising the commercial availability or quality of any property, goods, or services.(47 CFR 64.1200(f)(1)).
- Telemarketing - the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person. (47 CFR 64.1200(f)(12)).
- ** was the purpose of the truncated call to encourage the purchase of property, goods, or services?
- 8th Circuit stated – context indicated they were initiated for the purpose of promoting the movie. True? Discuss Chesbro v. Best Buy (9th Cir. 2012). Compare also Dolemba (N.D. Ill. 2015) (invitation to participate in town hall call to learn about becoming insurance agent).
- Is made by or on behalf of a tax-exempt nonprofit organization; or
- Delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.
- How does the FCC’s July 2015 order and the court appeals affect campaigns?
- Review autodialer interpretation
- Review revocation issue
- Discuss status of Golan post-remand. As of this writing, possible default.
Seth L. Williams, Attorney
Marashlian & Donahue, PLLC
Nathaniel J. Hardy, Of Counsel
Marashlian & Donahue, PLLC
- Importance of Golan Decision
- While other factors may have made plaintiff’s case stronger, it is important to keep in mind that the Golan Decision clarifies that the PURPOSE of a call determines whether it is a telemarketing call
- Brief Summary of Act
- Different Treatment of Landline and Mobile Numbers
- Definition of Telemarketing under Act
- Brief Summary of Act
- Omnibus Order
- Definition of Autodialer
- Called Party vs. Intended Party & Reassigned Numbers
- One Call Safe Harbor
- Revocation of Consent
- Managing Compliance/Suggested Best Practices
- Maintaining and Scrubbing Against Business-Specific Do Not Call Lists
- Scrubbing Number Lists against National Do Not Call List
- Differentiating landline and mobile numbers
- Scrubbing Number Lists against Ported Number Lists
- Scrubbing Number Lists against Consent Records
- Developing systems to track consent, including FCC’s suggested best practices from the Omnibus Order (This is not a safe harbor)
- periodically emailing or mailing customers to ask them to update their contact information, including telephone numbers;
- require customers to inform the caller when they change telephone numbers in contracts with customers;
- include interactive opt-out mechanisms in all autodialed or prerecorded calls so called parties can report wrong numbers;
- provide customer service representatives with the ability to record wrong numbers while making outbound calls;
- provide customer service representatives with the ability to record new numbers for customers when they receive calls from the customers;
- recognize “triple tones” indicating that a number has been disconnected when making autodialed or live telephone calls and record the number as disconnected and likely to be reassigned;
- establish policies that automatically note numbers as having been reassigned if a customer cannot be reached at a number after a period of time; and
- enable customers to update contact information in response to a text message.
Who Should Attend:
- Class Action Attorneys
- Communications Law Attorneys and Related Practice Areas
- TCPA Attorneys
- Legal and Compliance Executives
- Advertising and Marketing Professionals
- Chief Marketing Officers
- Marketing/Sales Executive
- Private Companies
- Other Related and Interested Professionals
Michelle Cohen’s practice is focused on a myriad of sectors within the E-Commerce industry – technology, manufacturing, and compliance. Michelle helps ensure that clients’ communications comply with the laws and regulations regarding marketing and privacy – whether through sweepstakes/contests, telemarketing, email marketing or beyond. Michelle’s communications experience includes licensing, enforcement, contracts, rulemaking and advocacy. When clients find themselves involved in an enforcement matter with the Federal Trade Commission, Federal Communications Commission or state agencies, Michelle’s deep knowledge in these areas and her strong footing in the privacy community help her to resolve issues in the most expedient manner possible. In fact, Michelle has been handling TCPA cases since the law was first implemented in 1992 and she is one of the few lawyers to have a TCPA citation that was issued to a client by the FCC, rescinded. Michelle has received certification as a Certified Information Privacy Professional (CIPP-US) from the International Association of Privacy Professionals (IAPP).
Michelle Cohen’s practice is focused on a myriad of sectors within the E-Commerce industry – technology, manufacturing, and compliance. Michelle …
Mr. Williams is an Associate with Marashlian & Donahue, PLLC. He advises clients on a wide range of domestic and international telecommunications matters, including universal service compliance, telecommunications tax issues, and the TCPA.
Mr. Williams’s TCPA practice covers the full range of matters faced by telecommunications providers and end users. He has extensive experience with the FCC’s rules implementing the TCPA, including representing clients before the FCC and advising clients on the FCC’s evolving interpretation of the TCPA. Mr. Williams also defends clients in TCPA litigation.
Prior to joining Marashlian & Donahue, Mr. Williams earned an LL.M. in communications law from Catholic University after completing his J.D. at Indiana University. During law school and his LL.M. program, he clerked at the FCC in the Audio Division and for then-Chairwoman Mignon Clyburn’s office.
Mr. Williams is an Associate with Marashlian & Donahue, PLLC. He advises clients on a wide range of domestic and …
Mr. Hardy is Of Counsel with Marashlian & Donahue, PLLC and his practice encompasses a wide range of regulatory, transactional, intellectual property and public policy matters for communications and media clients.
His experience covers the range of regulatory matters faced by entities subject to government or administrative oversight. Mr. Hardy also has extensive experience with the FCC’s spectrum auction process; including the application, bidding and licensing portions of auctions and seeking redress for unfavorable auction decisions rendered by the FCC.
Mr. Hardy’s transactional practice includes drafting and negotiating purchase agreements, licensing agreements, and programming and carriage agreements for clients. He also provides guidance and advice on intellectual property issues, including copyright and trademark registration and protection, and data collection, privacy and consumer protection matters, including compliance with the TCPA and TSR.
Mr. Hardy is Of Counsel with Marashlian & Donahue, PLLC and his practice encompasses a wide range of regulatory, transactional, …
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