Convoso CEO Nima Hakimi is on the Board of Consumer Consent Council, which sits under the PACE umbrella. CCC is an association that serves member companies in the lead generation industry. Both organizations support business success by promoting effective and compliant best practices for customer engagement.
PACE Counsel’s Corner
Michele Shuster, General Counsel, PACE – February 2023
PACE General Counsel is here to keep you current with legislative, advocacy, and lobbying activity throughout the year. Each month you’ll find a summary of what’s happening in the regulatory, compliance, and customer service spaces. 2023 is already busy with updates from last year, newly introduced bills, and laws taking effect this year. MacMurray & Shuster continues to work to keep us all informed.
PACE Advocacy
- DentalPlans.com’s Petition to the FCC. PACE has filed comments related to DentalPlans.com’s petition to the FCC, which sought to convince the FCC to rule that renewal notification calls should not be considered telemarketing calls.
- New Medicare/Medicaid Regulations. PACE will be submitting comments related to the Centers for Medicare and Medicaid’s proposed regulations for 2024. One proposal would prohibit third-party marketing organizations from sharing consumer information with other third-party marketing organizations.
- California Privacy Protection Agency Rulemaking. PACE will be submitting comments to California’s privacy agency regarding its rulemaking activities related to cybersecurity audits, risk assessments, and automated decisionmaking.
Regulatory News
FCC Finalizes TCPA-Exempt Prerecorded Message Rules
Under the TCPA, certain non-marketing calls are exempted from the law’s prohibition on
prerecorded messages delivered without a consumer’s consent. These calls contained
numerical limits: (1) calls not made for a commercial purpose, calls made for a commercial
purpose but not containing an unsolicited advertisement, and calls from a tax-exempt charity are
limited to three artificial or prerecorded voice calls per 30-day period; and (2) calls subject to
HIPPA are limited to three artificial or prerecorded voice calls per week. These numerical limits
may be exceeded if the caller obtains the consumer’s written or verbal consent to do so.
Additionally, all prerecorded messages exempted under this rule must contain an automated
interactive voice or key-press mechanism to opt-out of receiving such calls. These rules go into
effect on July 20, 2023.
Samsung Hit with California Wiretapping Suit
The California Invasion of Privacy Act (CIPA) has been in the news since last year, with
Samsung being the most recent target. In 2022, the 9th Circuit ruled in Javier v. Assurance IQ,
that CIPA applies to internet communications. CIPA is California’s wiretapping law, and prohibits
individuals of learning the contents of a message or communication through electronic means
without the communicating parties’ consent. The lawsuit alleges that Samsung embeds code on
its website that enables third-party vendors to record conversations between consumers and
Samsung reps made via the chat feature on Samsung’s website. CIPA continues to be the hot
new consent-based law for plaintiffs’ attorneys seeking to get their case into court. Since the
Javier decisions, other huge corporations have been named in CIPA suits, such as Meta, Inc.,
Fidelity, and Goodyear Tire and Rubber Company.
Petition Sent to Ninth Circuit to Reconsider Circuit’s TCPA cases Decision
Plaintiff in a TCPA case filed in California federal court has sent a petition to the Ninth Circuit to
review its decisions related to the TCPA in the aftermath of Facebook v. Duguid. The petition
requests the Ninth Circuit to sit en banc (meaning the case will be heard by multiple judges as
opposed to just one) and reconcile apparent contradictions in multiple cases in that circuit,
including Borden, Brickman, and Panzarella. According to the petition, the decisions rendered in
these cases do not abide by the Supreme Court’s decision regarding what constitutes an ATDS
made in Facebook v. Duguid. As you may recall PACE submitted an amicus brief in Duguid,
which was cited in the decision. PACE’s amicus brief for Borden was cited by the Ninth Circuit
about a year after Facebook. If the Ninth Circuit grants the Petition, whatever decision it renders
is sure to have serious consequences for the TCPA across all federal courts.
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DISCLAIMER: The information on this page, and related links, is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.
