Feb 6, 2018 | Blog
The Telemarketing Sales Rule: For-Profit Telemarketers Must Be Truthful
According to a recent Federal Trade Commission blog posting (“Telemarketing Sales Rule requires clarity on charity”):
To make sure that telemarketers are truthful about why they are calling, so consumers can make an informed decision about whether to engage with a telemarketer and contribute to a charity, the 2001USA Patriot Act expanded the Federal Trade Commission’s Telemarketing Sales Rule to cover calls made to solicit charitable contributions.
At the direction of Congress, the FTC modified the Telemarketing Sales Rule to:
1) Apply to interstate calls made by for-profit telemarketers to solicit charitable contributions;
2) Require for-profit telemarketers to promptly disclose the name of the group making the request and that the purpose of the call is to ask for a donation; and
3) Prohibit for-profit telemarketers from making false or misleading statements to induce a person to contribute.
For-Profit Charitable Callers Must Follow the Telemarketing Sales Rule
Another FTC blog posting (“For-profit charitable callers must follow the rules”) advised that “The Do Not Call Registry” is designed to stop unwanted sales calls; however, one exception to the Do Not Call Registry allows for-profit fundraisers to call individuals on behalf of charities even if one’s telephone number is listed on the Do Not Call Registry. When these charitable fundraisers call someone, however, they must still follow the Telemarketing Sales Rule.
Notable provisions of the Telemarketing Sales Rule Which For-Profit Fundraisers Must Follow:
Telemarketers must promptly tell consumers the charity on whose behalf they’re calling and truthfully disclose if the purpose of the call is to ask for a donation.
Telemarketers cannot make misleading statements to persuade people to donate, including misrepresentations about the charitable purpose, how much money goes to the charity, whether donations are tax deductible, how the money will be used, or the telemarketer’s connection to the charity.
Telemarketers cannot use robocalls or prerecorded messages to reach consumers unless the person is a current member of the charity or has donated to the charity in the past. And even if the consumer has donated to that charity before, robocalls from a telemarketer must promptly offer a way to opt out of future calls.
If the consumer tells the telemarketer they don’t want to be called by that charity again, the telemarketer must maintain a Do Not Call list for that charity and stop calling that person on behalf of that charity.
Telemarketers cannot call before 8 A.M. or after 9 P.M.
Telemarketers must keep certain records, like scripts and promotional materials, for two years.
Have You Received Unsolicited or Unwanted Telemarketing Calls, Autodial Calls, Robocalls or Text Messages?
If you have received unwanted, unsolicited or harassing telemarketing calls, autodial calls, robocalls or text messages and would like to speak privately with an attorney to learn more about your potential legal rights, please complete the form to the right or contact Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, [email protected]; John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected]; or send an e-mail to [email protected].
Dec 13, 2017 | Blog
Overdraft Programs & Overdraft Fees – CFPB’s Overdraft Program Study
“Consumer Voices on Overdraft Programs” – CFPB Overdraft Study – Key Findings
The CFPB reported that it launched a qualitative study to explore consumers’ thoughts, intentions, and expectations about overdraft programs to supplement its quantitative analyses of overdraft programs and their impacts on consumers. This qualitative study consisted of in-depth interviews with consumers who had experience with overdraft programs.
The CFPB’s report detailed the findings from consumer interviews, including how interviewed consumers understood overdraft programs, consumer perceptions of experiences with overdraft, and consumer beliefs about the advantages and drawbacks to alternatives to overdraft.
The CFPB reported the following key findings from consumer interviews:
Consumers in the study noted several benefits to the availability of overdraft as well as drawbacks. Despite recognizing some benefits, however, all participants were concerned about the high cost of overdraft fees.
Participants commonly reported surprise at the overdraft fees they were charged. At the same time, some participants expressed awareness that they risked overdraft fees when transacting.
Participants expressed uncertainty about how their financial institutions make decisions about what to pay into overdraft or how they charge overdraft fees; participants were particularly uncertain about how their financial institution’s overdraft policies differed across types of transactions.
Many participants’ overdraft experiences reflected uncertainty about transaction processing, such as the timing of deposits being credited to their accounts. Participants also commonly forgot about scheduled payments that resulted in overdrawn accounts.
Participants frequently cited friends and family members as resources that could provide an alternative for them to overdraft. Their views on other financial products as alternatives to overdraft such as credit cards or savings diverged widely, with some participants viewing these alternatives as beneficial and others viewing alternatives as risky.
CFPB’s Overdraft Study Highlights Importance of Providing Suggestions & Strategies To Support Consumers
The CFPB report stated that
. . . the range of experiences with overdraft described by consumers participating in the CFPB’s study highlights the importance of providing resources that reflect the diversity in how consumers use and understand overdraft programs. The wide range of preferences and experiences that consumers relayed through the interviews indicates that financial educators may best achieve their goals by designing flexible resources that adapt to individual consumers’ experiences and preferences. Below are some suggestions of strategies . . . to support consumers:
**Remind consumers to consider a bank or credit union’s overdraft practices when selecting a checking account.
**Encourage consumers to investigate all overdraft options offered for their current checking account, including linking an account, in order to select the plan that best fits their needs.
**Help clients develop a system for staying aware of the timing of their scheduled payments. The CFPB’s Your Money Your Goals toolkit includes a spending tracker and a bill calendar that consumers can use to keep track of their cash flow. Those who are interested in the tools can order them for free at consumerfinance.gov/your-money-your-goals/.
**Encourage consumers to check account balances periodically by doing things such as calling their bank, visiting an ATM, signing up for text alerts, viewing accounts online, or using mobile applications before making discretionary purchases.
**Suggest that consumers sign up for low balance alerts to help them avoid unintentional overdraft.
CFPB Educational Resources and Tips for Consumers on Managing Checking Accounts, Including Information on Overdraft-Related Issues
Guides to selecting and managing checking accounts, available at consumerfinance.gov/about-us/blog/guides-to-help-you-open-and-manage-your-checking-account/.
A worksheet to support consumers in managing spending to achieve their financial goals at consumerfinance.gov/about-us/blog/managing-your-spending-achieve-your-goals/.
Explanation of how overdraft programs differ for everyday debit card purchases and ATM withdrawals at consumerfinance.gov/about-us/blog/understanding-overdraft-opt-choice/.
Answers to consumer questions about overdraft and other issues relating to bank accounts and services as part of the Ask CFPB website at consumerfinance.gov/askcfpb.
The CFPB’s report, which shares findings from qualitative interviews the CFPB conducted with consumers about their experiences with overdraft programs, can be viewed by clicking CFPB’s Consumer Voices Report.
Dec 12, 2017 | Blog
**FCC rules limit many types of robocalls, though some calls are permissible if prior consent is given.
**Rules differ between landline and wireless phones; however, calls and text messages have the same protection under FCC rules.
**Wireless and landline home phones are protected against telemarketing robocalls made without prior written consent from the recipient.
**An existing commercial relationship does not constitute permission to be robocalled or texted.
**Consent to be called or texted cannot be a condition of a sale or other commercial transaction.
**Consumers can take back their permission to be called or texted in any reasonable way. A calling company cannot require someone to fill out a form and mail it in as the only way to revoke consent.
**All non-emergency robocalls, both telemarketing and informational, require a consumer’s permission to be made to a wireless phone. These calls can include political, polling, and other non-telemarketing robocalls.
**Telemarketers and robocallers are allowed to call a wrong number only once before updating their lists. This most commonly comes up when someone who consented to be called or texted gave up that number, which was reassigned to someone else. Callers have resources available to them to help them know ahead of time if a number’s “owner” has changed.
**Urgent calls or texts specifically for health or fraud alerts may be allowed without prior consent. They must be free, and consumers can say “stop” at any time.
**Phone companies face no legal barriers to offering consumers the use of technologies that block robocalls to any phone. The FCC encourages companies to offer this resource.
FCC FAQs Regarding Robocalls, Autodialed & Prerecorded Calls
What are the rules for robocalls?
FCC rules require a business to obtain your written consent – on paper or through electronic means, including website forms, a telephone keypress – or a recording of your oral consent before it may make a prerecorded telemarketing call to your residential phone number or make an autodialed or prerecorded telemarketing call or text to your wireless number.
What are the consent requirements for telemarketers calling my landline?
Businesses must have your prior express written consent before making telemarketing robocalls. Telemarketers are no longer able to make telemarketing robocalls to your landline home telephone based solely on an “established business relationship” that you may have established when purchasing something from a business or contacting the business to ask questions.
Are robocalls to wireless phones permissible?
Your written or oral consent is required for ALL autodialed or prerecorded calls or texts made to your wireless number. Telemarketers have never been permitted to make robocalls to your wireless phone based solely on an “established business relationship” with you.
Do all prerecorded autodialed calls to my landline violate FCC rules?
Not always. Informational messages such as school closings or flight information are permissible without prior written consent.
What other autodialed calls are permitted under FCC robocall rules?
Market research or polling calls to residential wireline numbers are not restricted by FCC rules, nor are calls on behalf of tax-exempt non-profit groups. The rules do require all prerecorded calls, including market research or polling calls, to identify the caller at the beginning of the message and include a contact phone number. All autodialed or prerecorded non-emergency calls to wireless phones are prohibited without prior expressed consent, regardless of the call’s content.
Can I opt out of autodialed calls?
FCC rules require telemarketers to allow you to opt out of receiving additional telemarketing robocalls immediately during a prerecorded telemarketing call through an automated menu. The opt-out mechanism must be announced at the outset of the message and must be available throughout the duration of the call.
FCC FAQ’s: Robocalls, Autodialed Calls & Prerecorded Calls
Have You Received Unsolicited or Unwanted Telemarketing Calls, Autodialed Calls, Robocalls or Text Messages?
If you have received unwanted, unsolicited or harassing telemarketing telephone calls, autodial calls (“robocalls”) or text messages and would like to speak privately with an attorney to learn more about your potential legal rights, please complete the form to the right or contact Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, [email protected]; John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected]; or send an e-mail to [email protected].
Kehoe Law Firm, P.C. is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors and consumers from corporate fraud, negligence, and other wrongdoing. Driven by a strong and principled sense of social responsibility and obtaining justice for the aggrieved, Kehoe Law Firm, P.C. represents plaintiffs seeking to recover investment losses resulting from securities fraud, breaches of fiduciary duty, corporate wrongdoing or malfeasance, those harmed by anticompetitive practices, and consumers victimized by fraud, negligence, false claims, deception, data breaches or whose rights to minimum wage and overtime compensation under the federal Fair Labor Standards Act and state wage and hour laws have been violated.
Nov 28, 2017 | Blog
FCC Allows Service Providers to Proactively Block Certain Types of Robocalls
The FCC adopted new rules on Nov. 16, 2017 that
. . . allow voice service providers to proactively block certain types of robocalls that are likely to be fraudulent because they come from certain types of phone numbers, including those that do not or cannot make outgoing calls. For example, perpetrators have used IRS phone numbers that don’t dial out to impersonate the tax agency, informing the people who answer that they are calling to collect money owed to the U.S. government. Such calls appear to be legitimate to those who receive them and can result in fraud or identity theft. Service providers now can block such calls, as well as calls from invalid numbers, like those with area codes that don’t exist, from numbers that have not been assigned to a provider, and from numbers allocated to a provider but not currently in use.
According to the FCC’s November 16, 2017 press release (which can be viewed by clicking FCC Adopts Rules Allowing Phone Companies To Proactively Block Illegal Robocalls):
Unwanted calls, including illegal robocalls, are the top consumer complaint at the FCC, with more than 200,000 received annually. Some private analyses estimate that U.S. consumers received approximately 2.4 billion robocalls per month in 2016. Advancements in technology make it cheap and easy to make robocalls and to “spoof” Caller ID information to hide the caller’s true identity.
To combat these scams, the new rules approved today expressly authorize voice service providers to block robocalls that appear to be from telephone numbers that do not or cannot make outgoing calls, without running afoul of the FCC’s call completion rules.
As a result of today’s action, voice service providers will be allowed to block calls purporting to be from a phone number placed on a “do not originate” list by the number’s subscriber. They will also be allowed to block calls purporting to be from invalid numbers, like those with area codes that don’t exist, from numbers that have not been assigned to a provider, and from numbers allocated to a provider but not currently in use.
To minimize blocking of lawful calls, [the FCC’s] Report and Order encourages voice service providers that elect to block calls to establish a simple way to identify and fix blocking errors. The rules also prohibit providers from blocking 911 emergency calls.
The FCC’s “Report and Order and Further Notice of Proposed Rulemaking,” describing the new rules authorizing call blocking of certain types of numbers that do not, or cannot make, outgoing calls, can be viewed by clicking FCC Report & Order_FCC 17-151.
Have You Received Unwanted, Unsolicited or Harassing Telephone, Telemarketing, Autodial or Robocalls and/or Text Messages?
If you have received unwanted, unsolicited or harassing telephone, telemarketing, autodial or robocalls and/or text messages and would like to speak privately with an attorney to learn more about your potential legal rights, please complete the form to the right or contact Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, [email protected]; John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected]; or send an e-mail to [email protected].
The Kehoe Law Firm, P.C. is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors and consumers from corporate fraud, negligence, and other wrongdoing. Driven by a strong and principled sense of social responsibility and obtaining justice for the aggrieved, Kehoe Law Firm, P.C. represents plaintiffs seeking to recover investment losses resulting from securities fraud, breaches of fiduciary duty, corporate wrongdoing or malfeasance, those harmed by anticompetitive practices, and consumers victimized by fraud, negligence, false claims, deception, data breaches or whose rights to minimum wage and overtime compensation under the federal Fair Labor Standards Act and state wage and hour laws have been violated.
Nov 21, 2017 | Blog
According to the FCC:
. . . on August 2, 2016, the FCC adopted rules to implement amendments to the Telephone Consumer Protection Act (“TCPA”) that exempt some robocalls—including autodialed text messages made to collect a debt owed to or guaranteed by the United States—from certain TCPA requirements. The statutory amendments that the FCC’s rules implement state that prior express consent is no longer needed when sending autodialed text messages or making autodialed, prerecorded voice, and artificial voice calls to a wireless number to collect a federal debt. Pursuant to the amendments, the FCC rules restrict, among other things, the number, duration and recipient of such robocalls, and they provide specifically that recipients can opt out of further calls. The FCC’s decision is available at: https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-99A1.pdf
Further, the FTC’s update stated:
Federal debt collection robocalls (which may be an autodialed call, a prerecorded-voice call, an artificial-voice call, or a text message sent using an autodialer) may be made to a wireless number without the recipient’s prior express consent but only under certain conditions.
Who May Be Robocalled?
- Federal debt collectors and their agents and contractors may only make calls to debtors or other persons legally responsible for paying the debt, but not, for example, to friends, family, or persons referenced in debt paperwork.
Is Telemarketing Allowed?
- Robocalls are only permitted for purposes of collecting the federal debt and not for marketing or other unrelated purposes.
When May Federal Debt Collectors Place a Robocall?
- These calls may only be made: 1) while the debt is delinquent; or 2) in the case of certain debt servicing calls, subject to strict limits, following a “specific, time-sensitive event” and in the 30 days before such an event that affects the amount or timing of payments due (e.g., end of a deferment period or a recertification deadline).
Which Numbers May Be Called?
- Federal debt collectors may only make these calls to wireless telephone numbers that: 1) the debtor provided at the time the debt was incurred; 2) were subsequently provided by the debtor to the owner of the debt or the owner’s contractor; or 3) were obtained from an independent source by the federal debt collector so long as the number actually belongs to the debtor.
How Many Calls? What Time of Day?
- Consumers may be robocalled no more than three times within a 30-day period by each servicer or collector per type of loan. Calls need not be completed to count toward the three-call limit.
- Calls may only be placed between 8 am and 9 pm local time at the debtor’s location.
What About Opt-Out and Disclosure Requirements?
- Debtors have a right to opt out from receiving federal debt collection robocalls and robotexts at any time by any reasonable means (e.g., verbally, in writing, or by reply text).
- Federal debt collection robocalls and robotexts must disclose the debtor’s “stop-call” rights and include opt-out instructions.
What is the Limit on Call Length?
- Artificial-voice and prerecorded-voice calls are limited to 60 seconds in duration (not including required disclosures).
- Autodialed texts are limited to one text message of 160 characters. (Required disclosures may be sent separately.)
What is the Interplay with the TCPA and Other FCC Implementing Rules?
- All other provisions of the TCPA and the FCC’s implementing rules regarding autodialed and prerecorded calls still apply.
Have You Received Unwanted, Unsolicited or Harassing Telephone, Telemarketing, Autodial or Robocalls and/or Text Messages?
If you have received unwanted, unsolicited or harassing telephone, telemarketing, autodial or robocalls and/or text messages and would like to speak privately with an attorney to learn more about your potential legal rights, please complete the form to the right or contact Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, [email protected]; John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected]; or send an e-mail to [email protected].
The Kehoe Law Firm, P.C. is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors and consumers from corporate fraud, negligence, and other wrongdoing. Driven by a strong and principled sense of social responsibility and obtaining justice for the aggrieved, Kehoe Law Firm, P.C. represents plaintiffs seeking to recover investment losses resulting from securities fraud, breaches of fiduciary duty, corporate wrongdoing or malfeasance, those harmed by anticompetitive practices, and consumers victimized by fraud, negligence, false claims, deception, data breaches or whose rights to minimum wage and overtime compensation under the federal Fair Labor Standards Act and state wage and hour laws have been violated.
Aug 17, 2017 | Blog
Overdraft – CFPB’s “Know Before You Owe” Disclosure Prototypes
Consumers Typically Pay Almost $450 More in Fees
On August 4, 2017, the Consumer Financial Protection Bureau (CFPB) announced
. . . new Know Before You Owe overdraft disclosure prototypes designed to improve the model form that banks and credit unions already provide to consumers weighing overdraft coverage. The [CFPB] is currently testing four prototypes that each have a simple, one-page design aimed at making the costs and risks of opting in to overdraft coverage easier to understand and evaluate. People who frequently attempt to overdraw their checking accounts typically pay almost $450 more in fees if they opted in to debit card and ATM overdraft coverage, according to a new CFPB study . . . [which] found that most of these frequent overdrafters are financially vulnerable, with lower daily balances and lower credit scores than people who do not overdraft as often.
“[The CFPB’s] study shows that financially vulnerable consumers who opt in . . . risk incurring a rash of fees when using their debit card or an ATM,” said CFPB Director Richard Cordray. “Our new Know Before You Owe overdraft disclosure prototypes are designed to help consumers better understand the consequences of the opt-in decision.”
According to the CFPB’s press release:
An overdraft occurs when consumers lack the funds in their account to cover a transaction, but the bank or credit union pays anyway. Financial institutions may charge a fee for this service, typically around $34 per transaction, and require that the account deficit be repaid with subsequent deposits. In 2010, federal regulations began requiring financial institutions to obtain a consumer’s consent in advance before charging overdraft fees on most debit card transactions and ATM withdrawals. Consumers who do not opt in to overdraft coverage will generally have debit card purchases and ATM withdrawals declined with no charge if their account doesn’t have enough funds to cover the transaction at the time they attempt it.
In addition to debit card transactions and ATM withdrawals, consumers can overdraw their account through checks, online bill payments, or direct debits from lenders or other billers. Banks and credit unions can charge overdraft fees on checks or electronic payments made through the Automated Clearing House system, and on debit card payments set up on a recurring basis. Charging these fees does not require the consumer to opt in, because those fees are not covered by the 2010 rule.
CFPB Says “Know Before You Owe”
The CFPB’s announcement stated that
[b]ecause of the possibility of racking up fees, choosing whether to opt in to debit card and ATM overdraft services can be an important decision for consumers. Federal regulations already require financial institutions to give consumers certain overdraft information, and the regulations provide a model form. The four one-page prototype model forms unveiled today, like the Bureau’s Know Before You Owe disclosures for mortgages and prepaid accounts, are designed to give consumers more clarity about a key financial decision. The CFPB developed the prototypes through interviews with consumers, and is now testing them more widely. The prototypes are aimed at making it easier to:
- Understand the costs of opting in:The updated designs are aimed at helping consumers to better understand opt-in costs by clearly laying out the size of the fees and when they can be charged. They are intended to clarify the institution’s overdraft polices. They also explain that the opt-in decision applies only to one-time debit card and ATM transactions, and that it does not affect overdraft on checks and other electronic transactions.
- Evaluate the risks and benefits of opting in:The prototypes are intended to better assist consumers in making their own choice about whether they want overdraft services for most debit card transactions. They make clear that debit card and ATM overdraft is optional, and that consumers are not required to opt in.
These updated prototypes, if adopted, could also make it easier to provide customers with the disclosure form. The CFPB would make any new Know Before You Owe model overdraft form available on its website. Institutions would be able to plug their specific program information into the online form and then quickly download it for free. This new approach could make it seamless for banks and credit unions to use a new model form within their existing compliance systems, and easier to update their disclosures following future overdraft program changes. However, as the Bureau tests these prototypes further and considers changes to existing requirements, the model form provided in the 2010 rule continues to apply.
The Kehoe Law Firm, P.C. is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors and consumers from corporate fraud, negligence, and other wrongdoing. Driven by a strong and principled sense of social responsibility and obtaining justice for the aggrieved, Kehoe Law Firm, P.C. represents plaintiffs seeking to recover investment losses resulting from securities fraud, breaches of fiduciary duty, corporate wrongdoing or malfeasance, those harmed by anticompetitive practices, and consumers victimized by fraud, negligence, false claims, deception, data breaches or whose rights to minimum wage and overtime compensation under the federal Fair Labor Standards Act and state wage and hour laws have been violated.
