Marketing Compliance - July 2023
Klein Moynihan Turco LLP
We ensure our clients are compliant and up-to-the-minute on all things Internet, technology, and marketing law.
Major FTSA Amendments Signed Into Law
As our readership?knows, the Florida State legislature passed House Bill 761 (“HB 761”) on May 4, 2023. On May 25, 2023, Governor DeSantis signed the bill into law, clearing the path for major amendments to the Florida Telephone Solicitation Act (“FTSA”) to take effect. The FTSA is Florida State’s equivalent to the Telephone Consumer Protection Act (“TCPA”). The TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. Although modeled after the TCPA, the FTSA has been much more restrictive for telemarketers.
Are Confirmation Texts Allowed Under The TCPA?
As readers of this blog know, on May 18, 2023, the Federal Communications Commission (“FCC” or “Commission”) issued a?Notice of Proposed Rulemaking?(“NPRM”).?In addition to recommending that opt-out requests be honored within?24 hours?of receipt, the NPRM proposes to codify a prior Commission ruling that a single confirmation text may be sent to consumers in order to confirm consent revocation.
Do Your Privacy Policy Changes Require Consumer Notice And Consent?
Website operators may need to update their?privacy policies?when they make changes to their respective personal information collection, storage, sharing and usage practices.?Depending on the nature of the privacy policy changes, businesses may also need to provide notice to, and?obtain consent?from, consumers in order to comply with?applicable privacy laws.?
FCC: TCPA OPT-OUT REQUESTS TO BE HONORED WITHIN 24 HOURS!
On May 18, 2023, the Federal Communications Commission (“FCC” or “Commission”) issued a?Notice of Proposed Rulemaking?(“NPRM”). Among other things, the NPRM proposes that companies honor certain unsubscribe or TCPA?opt-out?requests within 24 hours of receipt. To be discussed in a future blog, the NPRM also proposes to codify the Commission’s prior ruling that a one-time text message may be sent to confirm a consumer’s revocation of consent.?
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FTC Takes Aim At Amazon’s Subscription Cancellation Process
On June 21, 2023, the Federal Trade Commission (“FTC” or the “Commission”) sued online retail giant Amazon.com for violating of section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act (“ROSCA”). The FTC is a United States governmental agency whose primary mission is to protect consumers and enforce civil antitrust laws. With the?rise of ecommerce, according to the FTC, many online retailers have utilized unscrupulous tactics, including?confusing cancellation policies, to maximize profits from unknowing or unwilling repeat customers. Amazon’s arduous cancellation process, as alleged by the FTC, is just one example of the mega-retailer’s utilization of dark patterns.
28 Attorneys General Ask For Major TCPA Consent Changes
On March 16, 2023, the Federal Communications Commission (“FCC”) issued a?Report and Order and Further Notice of Proposed Rulemaking?(“FNPR”) addressing a variety of issues under the Telephone Consumer Protection Act (“TCPA”). On June 6, 2023, a contingent of 28 attorneys general (“AGs”) submitted Reply Comments (“Comments”) in response to the FNPR. Almost the entirety of the 22-page AG submission addresses the propriety of obtaining consumer TCPA consent for telemarketing by multiple marketers on one webpage via hyperlinked marketing partner lists.
Is Amazon Tricking Customers Into Providing Subscription Consent?
On June 21, 2023, the Federal Trade Commission (“FTC” or “the Commission”) filed a heavily redacted?Complaint?against Amazon.com Inc. (“Amazon”) in the Western District Court of Washington. The Complaint alleges that the practices used by Amazon to obtain subscription consent violate both Section 5 of the Federal Trade Commission Act (“FTC Act”) and the Restore Online Shoppers’ Confidence Act (“ROSCA”). Specifically, the FTC alleges that Amazon “has knowingly duped millions of consumers into unknowingly enrolling in its Amazon Prime service”?(“non-consensual enrollment”)?by using tricks known as “dark patterns.”?
The Importance Of A Valid Sweepstakes AMOE
A recent Federal Trade Commission (“FTC”)?action?against, and settlement with, Publisher’s Clearing House (“PCH”) highlights the importance of offering consumers a free alternative means of entry into all sweepstakes promotions (also referred to as a “sweepstakes?AMOE”).?Sweepstakes operators may enable consumers to enter a sweepstakes via the purchase of a product or service. However, in such a case, a sweepstakes AMOE must also be made available, and its existence prominently disclosed to consumers.?