Thursday, April 9, 2020

TCPA Liability for Platform and Autodialing Software Providers

Must read

Immunity Supplement Marketers Face Heightened Regulatory Scrutiny

Immunity supplements and express or implied COVID-19 prevention, treatment, cure or diagnosis-related representations are squarely within the crosshairs. Without limitation, a lack of competent and reliable scientific evidence with respect to the final product formulation - not just a single/handful of ingredient(s) - could prove disastrous for those hurriedly seeking to bring products to market without first ensuring that lawfully adequate substantiation is possessed prior to dissemination of claims.

Skimlinks and Commission Junction Banned from Amazon Affiliate Program

Amazon banned Commission Junction and Skimlinks from Amazon starting in April from running Amazon's affiliate program. These affiliates will not earn a...

Does Coronavirus Excuse Non-Performance Under a Contract?

The Coronavirus outbreak has raised a number of issues relating to contractual performance obligations. An excuse for non-performance of contractual obligations may...

Ways to Avoid Spam Traps in Email Marketing

New research by Trustwave reveals that 26 per cent of spam is infected with malware. As a result spam filters are getting...
Avatar
Richard B. Newmanhttp://www.hinchnewman.com
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

In 2015, the Federal Communications Commission stated that “initiating” a telephone call can take more than one form, including those that “take the steps necessary to physically place a telephone call” or those that are “so involved in the placing of a specific telephone call as to be deemed to have initiated it.”

A federal court in West Virginia recently held that two platform providers and an autodialing software company are potentially liable under the Telephone Consumer Protection Act if they “knowingly” permitted their products to be used for unlawful purposes.

Here, the plaintiff alleged that thousands of illegal, misleading, defamatory and false recorded telephone messages were sent by individual defendants. Notably, the plaintiff named several corporate defendants, including Callcentric, Fiverr, RingCentral and Voicent, all of whom filed motions to dismiss.

First, the court agreed with Fiverr’s argument that it could not be liable under the TCPA because it did not play a significant role in the telephone calls. Fiverr merely provided actors that did the voice-overs for the subject messages. It did not contribute to the content or the manner in which telephone calls were initiated or placed.

Callcentric and RingCentral, both of whom provide VoIP services and assigned telephone numbers to the individual defendants, were not as fortunate. The plaintiff alleged that both provided calling platforms, and possessed “direct knowledge” of and the right of control the unlawful conduct. The court rejected their argument that they were not liable under the TCPA because they were passive conduits that did not initiate or make the telephone calls. Consequently, the court denied their motions to dismiss.

The court also denied Voicent’s motion to dismiss. Voicent provided autodialing software for delivery of the prerecorded messages. The court found that the plaintiffs allegations were sufficient to state a claim that Voicent knowingly allowed the other defendants to use the technology for an unlawful purpose. “Ultimately, whether or not Voicent may be held liable will depend upon a totality of the circumstances analysis, which is not appropriate on a motion to dismiss given the allegations in this case. Therefore, the Court denies Voicent’s motion with respect to direct liability.”

Calling and technology platforms providers have once again been reminded that they are not outside the zone of TCPA liability. If you are interested in learning more about this topic and how to minimize the potential for TCPA liability, consult with an experienced TCPA defense lawyer to evaluate applicable operations and services offered.

Richard B. Newman is an advertising law attorney at Hinch Newman LLP.

Attorney Advertising. For informational purposes only. Not legal advice.

- Advertisement -

More articles

What's your opinion?

- Advertisement -

Latest article

Immunity Supplement Marketers Face Heightened Regulatory Scrutiny

Immunity supplements and express or implied COVID-19 prevention, treatment, cure or diagnosis-related representations are squarely within the crosshairs. Without limitation, a lack of competent and reliable scientific evidence with respect to the final product formulation - not just a single/handful of ingredient(s) - could prove disastrous for those hurriedly seeking to bring products to market without first ensuring that lawfully adequate substantiation is possessed prior to dissemination of claims.

Skimlinks and Commission Junction Banned from Amazon Affiliate Program

Amazon banned Commission Junction and Skimlinks from Amazon starting in April from running Amazon's affiliate program. These affiliates will not earn a...

Does Coronavirus Excuse Non-Performance Under a Contract?

The Coronavirus outbreak has raised a number of issues relating to contractual performance obligations. An excuse for non-performance of contractual obligations may...

Ways to Avoid Spam Traps in Email Marketing

New research by Trustwave reveals that 26 per cent of spam is infected with malware. As a result spam filters are getting...

How to do Email Marketing During Coronovirus

During a crisis, your email communication can make or break your business. Even more importantly, it can help, hurt, or confuse people.  You...