Telemarketing has been a grey area when it comes to advertising and whether it’s an acceptable practice.
The Telephone Consumer Protection Act (TCPA) was created to make things clear and prevent harassment.
According to the act, telemarketing phone calls are unlawful unless the advertiser was given permission to call a consumer.
As a result, many people could breathe easier, knowing that they won’t receive unsolicited calls at odd times anymore.
This did make the work of a TCPA lawyer a lot more as many people reached out with their complaints.
However, ViSalus Inc. seemingly didn’t get the memo because the marketing company continued to call people without their consent. This resulted in a court case that didn’t go well for the company.
The ViSalus Lawsuit
ViSalus is based in Michigan and a direct-to-consumer personal health product company.
Lori Wakefield, a lady who used to work at and promote ViSalus, is the person who initiated the lawsuit.
According to her, the company made use of prerecorded calls, and these violate the TCPA.
As the ViSalus lawsuit case was underway, the jury that was present were informed of the company’s transgressions. Allegedly, it placed an incredible amount of recorded robocalls – almost two million in total.
The calls were made to consumers across the United States, offering deals on a number of products.
Reports indicate that these products included dietary supplements, weight-loss products and energy drinks.
When all the evidence was presented and cases were made, the jury was left to determine ViSalus’ fate. They concluded that the company’s more than 1.8 automated calls were indeed unlawful.
This kind of transgression can get a penalty of between $500 and $1 500 per call. It was decided that the minimum amount should be awarded here.
That resulted in the TCPA Lawyer winning a $925-Million dollar ViSalus lawsuit settlement.
District Judge Micheal H. Simon felt that the amount was mathematically correct and the decision was final.
ViSalus’ lawyer, Attorney Benjamin G. Shatz, felt that the decision was absurd and would be a death sentence for the court.
He wanted the determined amount to be lowered but this request was dismissed by the judge.
Issues Regarding The Automated Dialling System
Automated Dialling Systems (ATDS) are devices or software that automatically calls telephone numbers. The numbers are supposed to come from a company’s user database.
These systems are used in telemarketing to simplify the process and reach consumers without the need for a receptionist or call-centre.
Sometimes, random numbers are generated by ATDS and people are called without giving consent to such communication.
Noah Duguid was on the receiving end of messages by such a system. The messages came from Facebook while Duguid did not have an account on the social media platform.
He decided to take the legal route with the matter and take Facebook on in court.
This was a welcome move as the result of the case could provide more clarity on what the legal standing is with ATDS.
The United Supreme Court is expected to provide much needed clarity regarding what constitutes an Automatic Telephone Dialing System. The reality is that the landscape surrounding the TCPA is far from clear, and the Court’s anticipated insight in the Facebook, Inc. v. Noah Duguid case may address the ambiguity,” says Rick Nehora of Los Angeles-Caliifornia’s Nehora Law Firm, APC (credit here).
Major TCPA Update on Fax Liability
The ViSalus lawsuit and the $925-Million dollar ViSalus lawsuit settlement was certainly a win for the TCPA lawyer involved and consumers everywhere.
However, not everything in the telemarketing industry is so cut and dry, as could be seen with ATDS. And until recently, there was a lot of concern about the law regarding fax advertising.
Advertisers felt they were unfairly taking all the negative attention and blame when the TCPA was violated through fax marketing.
According to the TCPA, advertisers are not allowed to use telephone facsimile machines or computers to send unsolicited advertisements.
If consumers received unsolicited marketing messages through faxes, the advertiser was held liable. As such, it was the advertiser that would get into trouble for violating the act’s rules.
This would happen even when the advertiser was not involved in sending the messages.
The Federal Communications Commission realised the predicament that advertisers found themselves in. Recently, the commission endeavoured to give everyone a better understanding of the accountability of fax advertisers.
It has been determined that advertisers are not classified as ‘senders’ in the meaning of the rule where faxes are sent without the approval of the subject advertiser.