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Federal Deception Law: 6.3.5.2.1 The FCC’s limited exemption authority
The FCC’s authority to create exemptions beyond those set forth in the statute is narrow, confined to calls that are not charged to the called party and subject to conditions prescribed by the FCC to protect privacy.304 A call is not free to the end user if it counts against the limits on minutes or texts on the recipient’s cell phone plan.305 There is no exclusion for calls when the caller has an established business relationship
Federal Deception Law: 6.3.5.2.3 Calls regarding package delivery
In 2014, the FCC created an exemption, with certain conditions, for delivery notifications by carriers such as UPS attempting to deliver parcels.309 Among the conditions are a requirement that the notifications be free to the consumer—including not being counted against the consumer’s plan limits on minutes or texts—and give the consumer information about how to opt out.
Federal Deception Law: 6.3.5.2.5 Certain time-sensitive calls from financial institutions and health care providers
In a 2015 ruling, the FCC allowed certain “free to end user” calls to be made by financial institutions and health care providers for certain time-sensitive messages. Both of these exemptions are subject to the following conditions:316
Federal Deception Law: 6.3.6.1.2 The FCC’s definition of prior express written consent
For more detail about electronic records, electronic signatures, and the E-Sign Act, a subscription to this treatise also includes access to Consumer Banking and Payments Law Chapter 11, Electronic Transactions: Contracts, Disclosures, and Signatures.
Federal Deception Law: 6.3.6.2.1 Fraudulent or invalid online consent; burden of proof
For more detail about electronic records, electronic signatures, and the E-Sign Act, a subscription to this treatise also includes access to Consumer Banking and Payments Law Chapter 11, Electronic Transactions: Contracts, Disclosures, and Signatures.
Federal Deception Law: 6.3.6.2.2 Overview of E-Sign Act requirements when consent is obtained electronically
For more detail about electronic records, electronic signatures, and the E-Sign Act, a subscription to this treatise also includes access to Consumer Banking and Payments Law Chapter 11, Electronic Transactions: Contracts, Disclosures, and Signatures.
Federal Deception Law: 6.3.6.2.3 E-Sign Act requires that the consumer consent to receive written disclosures electronically
For more detail about electronic records, electronic signatures, and the E-Sign Act, a subscription to this treatise also includes access to Consumer Banking and Payments Law Chapter 11, Electronic Transactions: Contracts, Disclosures, and Signatures.
Federal Deception Law: 6.3.6.2.4 Electronic signature must meet the E-Sign Act’s guidelines
For more detail about electronic records, electronic signatures, and the E-Sign Act, a subscription to this treatise also includes access to Consumer Banking and Payments Law Chapter 11, Electronic Transactions: Contracts, Disclosures, and Signatures.
Federal Deception Law: 6.3.6.3.0 Definition of “prior express consent”
The TCPA requires prior express consent for autodialed or prerecorded calls to cell phones433 and for prerecorded calls to residential lines.434 Neither the statute nor the regulation defines the term “prior express consent.” However, the regulation defines the related term “prior express written consent.”435 That definition
Federal Deception Law: 6.5.3.2.2 FCC nationwide do-not-call rule applies to “telephone solicitations”; comparison to company-specific do-not-call rule
The FCC’s nationwide do-not-call rule applies to any “telephone solicitation.”759 This term is defined as “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,” with exceptions for calls with the called party’s prior express invitation or permission, calls to parties with whom the caller has an established business relationship, or calls by or on behal
Federal Deception Law: 6.4.1 Introduction
The TCPA prohibits placing a call that uses an artificial or prerecorded voice to a residential telephone line without the called party’s prior express consent.628 When Congress adopted this provision, it found that:
Federal Deception Law: 6.5.3.4 Operation of the Do-Not-Call Rules
The FCC’s do-not-call rule prohibits any telephone solicitation to a residential telephone subscriber whose number is registered on the national do-not-call list.861 Similarly, the FTC’s Telemarketing Sales Rule (TSR) provides that it is an abusive telemarketing practice for a telemarketer to initiate, or for a seller to cause a telemarketer to initiate, an outbound telephone call to a person whose telephone number is registered on the list.862
Federal Deception Law: 6.8.3.1.5 Surveys
A true survey may not be an advertisement.1057 Nonetheless, the FCC has held that “[t]he TCPA’s definition of ‘unsolicited advertisement’ applies to any communication that advertises the commercial availability or quality of property, goods or services, even if the message purports to be conducting a survey.”1058 A number of decisions have followed this common sense ruling, holding that a fax that pitches a product or service in the guise of conducting a survey or providing information about
Federal Deception Law: 6.4.2.1 Scope
The TCPA’s prohibition applies to calls to “any residential telephone line.”639 A residential line that is also used for a home-based business can fall within this prohibition.640 An Eleventh Circuit decision suggests in dicta that a cell phone does not qualify as a residential line.641 In addition, the FCC’s Consumer and Governmental Affairs Bureau
Federal Deception Law: 6.5.2.2 FCC Company-Specific Do-Not-Call Rule
Like the FTC’s rule, the FCC’s company-specific do-not-call rule requires persons or other entities that make telemarketing calls725 to maintain company-specific do-not-call lists and honor do-not-call requests.726 “Telemarketing” is defined as “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 t
Federal Deception Law: 6.8.3.2 Exemption When Fax Sent Pursuant to Express Invitation or Permission
The TCPA rule prohibits fax advertisements only if they are “unsolicited.”1083 An advertisement is “unsolicited” if it “is transmitted to any person without that person’s prior express invitation or permission.”1084 Decisions interpreting the term “prior express consent” in the robocall context may be persuasive.1085
Federal Deception Law: 6.2.5.1 Weight to Be Given to FCC Rulings
The TCPA gives the FCC certain rulemaking authority.63 Jurisdiction to determine the validity of final FCC orders is vested exclusively in the U.S.
Federal Deception Law: 6.3.6.1.1 What calls constitute telemarketing?
The FCC regulation allows autodialed and prerecorded calls to cell phones only with the recipient’s prior express written consent if the call constitutes telemarketing or introduces an advertisement.331 The regulation defines “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services.”332 A text message that leads the recipient to an advertisement “introduces” that advertisement.
Consumer Arbitration Agreements: 8.8.2.1 Overview
One approach when a term in an arbitration agreement is found to be unenforceable is to sever that term and enforce the rest of the agreement. The agreement may even include a term indicating that unenforceable terms should be severed—a so-called “severance” clause or provision. Note the distinction between a severance clause in the arbitration agreement and one in the agreement as a whole that could be interpreted as severing the arbitration requirement from the rest of the agreement if any aspect of the arbitration clause is found unenforceable.
Consumer Arbitration Agreements: 8.8.2.2.1 Introduction
Courts often cite to a federal preference in favor of arbitration when severing illegal terms from an arbitration agreement instead of invalidating the whole agreement.464 There are two issues with this justification. First, in Morgan v.
Consumer Arbitration Agreements: 8.8.2.2.2 Is the unenforceable term integral to the agreement?
Many courts refuse to sever unenforceable terms when those terms are “integral” to the agreement or go to the “essence” of the agreement so that they cannot be removed without effectively having to rewrite the agreement.469 Instead, these courts throw out the whole arbitration requirement.
Consumer Arbitration Agreements: 8.8.2.2.4 The existence of a severance provision
Severance provisions found in a contract outside the arbitration clause suggest that an unenforceable arbitration agreement might be severed from the rest of the contract. Other times the severance provision is found within the arbitration clause.
Consumer Arbitration Agreements: 8.8.2.2.5 Incentivizing drafter overreach and contracting in bad faith
Courts hesitate to sever illegal terms when there is evidence of drafter overreach, particularly when the frequency of illegal terms or extent of illegality suggests that the drafter acted with the illegal purpose of attempting to insulate itself from the law.488 Again, there could be overlap between a court’s consideration of this factor and the first two factors.