Pennsylvania Record

Tuesday, December 10, 2019

Pennsylvania takes on robocalls; Will more lawsuits ensue?

Attorneys & Judges

By Nicholas Malfitano | Nov 13, 2019

Phoney

HARRISBURG – One possible outcome of Pennsylvania’s new legislation designed to defend citizens from unwanted solicitation calls is a boost to lawyers who bring cases under the federal Telephone Consumer Protection Act.

The legislation is House Bill 318, which both expands and extends the protections provided to the state’s residential and wireless telephone subscribers by the 1996 Telemarketer Registration Act in connection with solicitation calls. The bill was sponsored by Rep. Lori Mizgorski.

Mizgorski described the new legislation as “giving consumers the ability to sign up for the Pennsylvania telemarketing ‘do-not-call’ [DNC] list without requiring them to re-register every 5 years and prohibiting telemarketing on legal holidays and calls initiated by computerized auto dialers (robocalls).”


Jaworski

Signed into law by Gov. Tom Wolf on Oct. 4, it becomes effective on Dec. 3.

The 1996 TRA law “required telemarketers to register with the Pennsylvania Attorney General's Office, prohibited telemarketers from engaging in certain telemarketing acts and practices declared in the law to be unlawful, and imposed written contractual requirements on them with respect to any sale of goods or services made during a telemarketing call.”

However, HB 318 further bolstered the consumer protections found in the 1996 law by:

-Adding a prohibition against making telephone solicitation calls on legal holidays; 

-Extending all of the protections in the TRA to “business telephone subscribers”;

-Removing the five-year renewal requirement for keeping a phone number on the Pennsylvania Do Not Call list, thereby giving consumers and businesses the ability to register their phone number(s) on the list permanently;

-And placing certain obligations on telemarketers that choose to make “robocalls.”

As to “robocalls," HB 318 requires telemarketers to “establish procedures to allow called persons to opt out of receiving future telephone solicitation calls and be immediately taken off the list," through providing methods of opting out of future calls and offering an instant mechanism by which the recipient can do so at any time.

“The Immediate Opt-Out Mechanism must be available to the recipient through ‘an automated, interactive voice-activated or key-press-activated opt-out mechanism...including brief explanatory instructions on how to use the opt-out mechanism, within two seconds of disclosing the name of the caller and the name of the person or entity on whose behalf the call is being made,” according to the bill.

Despite the new provisions under HB 318, enforcement of the new law remains the same under the prior TRA, as the responsibility of the Office of the Attorney General’s Bureau of Consumer Protection.

Violations of the Unfair Trade Practices Consumer Protection Law call for civil penalties of up to $1,000, or $3,000 if the person contacted is age 60 or older. Ten percent of any fine the Bureau of Consumer Protection collects, up to a maximum of $100, would be provided to the complainant. Further, a telemarketer’s failure to register as such would be a second-degree misdemeanor under the law.

HB 318 and Its Potential Effect On TCPA Litigation

Bob Jaworski, a financial services attorney with Holland & Knight in Philadelphia, spoke more about the new law and its possible impact on litigation brought under the TCPA, a 1991 federal law targeting telemarketers with statutory penalties of either $500 or $1,500 per call. Many plaintiffs lawyers have active TCPA practices, and previous reporting showed that private individuals have figured out how to game the law for their own benefit (a woman admitted to it in Pennsylvania federal court).

“If it does anything with respect to TCPA claimants and the attorneys who handle those claims, it may decrease the number of calls – because, number one, some of the provisions in this bill, for example, the one that says if a robocaller leaves a message, they have to leave a number at which the telephone subscriber can call and be immediately hooked up to the opt-out mechanism,” Jaworski said.

“In some sense, it may reduce the number of robocalls, to the extent that robocallers pay attention to the law at all. 

"It could lead to more violations, and hence, more attorneys filing TCPA lawsuits.”

Jaworski added the five-year limit of one’s membership on a Do Not Call List being done away with may also lead to more TCPA violations, as a telemarketer who is unaware that the former five-year limit is now permanent and does not check its lists accordingly may inadvertently contact some of the numbers contained on that list.

As to the inspiration for where such a bill may have come from, Jaworski said that “robocalls are something the general public hates” and joked that a legislator receiving one may be enough for such a bill to come into existence.

“Part of it is if you assume a law is going to take care of it and that people will pay attention to the law, in this area, I’m not sure that’s true. There’s lots of people out there who pay no attention to the law and it’s probably very difficult to find out who they are, where they are and how to go after them," Jaworski said.

"So, it’s a problem for government, generally. If you pass a law, you have to be able to enforce it."

Jaworski added that federal Do Not Call lists are usually effective at deterring robocalls and corresponding state lists are duplicative.

“There are ongoing efforts at the federal level to enact a law to deal comprehensively with the problem of robocalls. I think it’s bipartisan, which is unusual these days. We’ll have to wait and see whether it actually gets enacted,” Jaworski said.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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