The FTC held a workshop on Wednesday to examine the blurring lines of advertisements and content in digital media today. Executives from a myriad of professions gathered to discuss how sponsored content in digital publications takes form and affects the consumer.
Native advertising, or sponsored content, is the practice of masking advertising to look like news articles and features of the publications where they appear. The Internet has witnessed this practice grow aggressively in the past few years, and the FTC has already issued a warning to advertisers, saying it won’t hesitate to enforce rules against misleading advertising.
One of the main issues discussed during the panels today was how consumers were affected by native advertisements. Staff attorneys from the FTC repeatedly stressed that marketers bear the responsibility to ensure that the original source of the advertisement is transparent to the consumer. Often times, especially on social media outlets such as Twitter, links are tweeted or retweeted along with other links, causing confusion. Marketers like this because their native advertisements will become blurred and perceived as actual content. Studies have shown that native advertisements actually receive more views than naturally occurring ads. Bob Garfield, MediaPost columnist, said of native ads, “Native advertising is not deception, it’s a conspiracy of deception that’s becoming harder and harder to spot. This is unfair for the consumer.”
Sponsored content run by various websites is already being carefully watched by the agency. FTC Chairwoman, Edith Ramirez, said of native advertising, “The delivery of relevant messages and cultivating user engagement are important goals. But it’s equally important that advertising not mislead consumer by presenting ads that resemble editorial content.”
But not everyone at the workshop on Wednesday was convinced this is a problem for the consumer. David Franklyn, University of San Francisco law professor, claimed that studies at his university showed 35 percent of consumers could not identify a sponsored advertisement. Additionally, nearly half of the consumers studied did not know what ‘sponsored content’ meant. “How can consumers have a problem with something that they don’t even know exists,” asked Franklyn. Lastly, and perhaps most importantly, a third of the consumers reported they did not care if something was an advertisement.
Another popular topic at today’s workshop was the deceptive advertising in themarketing of diet pills and the supplement industry as a whole. The FTC is beginning to crack down on the practices of this industry. The agency described their ‘endorsement guides’ as they pertain to advertising – certain principles must be met between the marketer and the buyer. Along the same lines, in an internal FTC memo, the agency noted that another recent problem with search engines was the ambiguity behind search results and the fake testimonials that came with the diet pill ads. The FTC stressed that consumers have the right to know what search results were ‘naturally occurring’ opposed to paid results.
Native advertising is by no means a phenomenon that exists only in obscure corners of the internet. Sites such as the Huffington Post, Proctor and Gamble and BuzzFeed have all been engaging in these native advertisement practices. Additionally, 73 percent of online publishers reported they have offered sponsored content opportunities on their sites. Other online publications, such as The New York Times, are considering offering these types of ads in 2014.
Even though many consumers seem to be at peace with sponsored content, based on results found from studies at the University of San Francisco Law School, consumers are still being exposed to deceptive advertising practices. And any time that happens, the enforcement side of the FTC is likely to get involved. Will we see an enforcement case on native advertising as early as 2014? That’s unclear, but if more companies, like the Times, plan to engage in these practices, there is a high probability we will see the FTC take action sooner rather than later.
FTC Vigilant on Children’s Privacy – Rejects Proposal for Collecting Verifiable Parental Consent Under COPPA
On November 12, 2013, the Federal Trade Commission (“FTC”), in a 4-0 vote, denied AssertID’s application for approval of a proposed verifiable parental consent (“VPC”) method under the Children’s Online Privacy Protection Rule (“COPPA”). Under the FTC’s COPPA rule, covered online websites and services must obtain “verifiable parental consent” (“VPC”) before collecting personal information from children under 13. The agency’s revised COPPA rule became effective in July; among other changes, it expanded the categories that can constitute “personal information.” The FTC’s COPPA rule sets forth several acceptable methods of obtaining parental consent. Notably, the rule also allows parties to seek FTC approval of other VPC methods.
The FTC’s approval process allows organizations to present innovative VPC methods, thereby permitting flexibility and taking into account new technologies, while still ensuring that parents provide consent on behalf of their children as required under COPPA. The FTC requires that applicants seeking approval for a unique VPC provide: (1) a detailed description of the proposed parental consent method; and (2) an analysis of how the method is reasonably calculated in light of available technology, to ensure that the person providing consent is the child’s parent.
The FTC reviewed AssertID’s proposed VPC method following a public comment period. AssertID’s product, “ConsentID,” would ask a parent’s “friends” on a social network to verify the identity of the parent and the existence of the parent-child relationship (“social-graph verification”). The FTC concluded that “ConsentID” did not meet the criteria to ensure that the person providing consent is the child’s parent. The agency determined that it is premature to approve ConsentID, since AssertID did not present sufficient research or marketplace evidence demonstrating the efficacy of social-graph verification.
The FTC also questioned the efficacy of social-graph efficacy in the “real world.” The agency noted that relying upon social network users to confirm parental consent posed many problems including the fact that many profiles are fabricated (noting that Facebook’s SEC 10-Q indicates it has approximately 83 million fake accounts). In conclusion, the agency found that “identity verification via social-graph is an emerging technology and further research, development, and implementation is necessary to demonstrate that it is sufficiently reliable to verify that individuals are parents authorized to consent to the collection of children’s personal information.”
The FTC has approved and denied other VPCs. The agency’s denial of AsssertID’s application signals that while the FTC encourages the uses of new technologies to obtain VPC under COPPA, it will review new methods carefully, mandating research results and demonstrable success in a “real world” scenario rather than just a beta test. Website operators collecting personal information of children under 13 (and “personal information” now includes geolocation information, as well as photos, videos, and audio files that contain a child’s image or voice) should review their COPPA compliance, including their methods of VPC. The FTC continues to be especially vigilant in protecting certain categories of personal information, including children’s information, financial information, and health information.
For-profit education needs rebranding. With the recent appointment of Michael Dakduk as key advisor to the Association of Private Sector Colleges and Universities, the sector has made a step in the right direction. The onslaught of negative news against for-profit educators has severely impacted industry growth. Recent reports on drops in enrollment (and thus earnings) at Bridgepoint Education, Inc.,Strayer Education, Inc., Education Management Corp. and Apollo Group Inc. demonstrate just how hard the sector has been hit.
A central problem is for-profit education’s extreme unpopularity among government regulators – thanks, largely, to some bad actors overselling their programs and pressuring prospective students. Regulators both perceive and characterize for-profit educators as unscrupulous opportunists. Unfortunately for the industry, this is a characterization regulators like to broadcast to the public without much qualification. (Query: since when did it become okay for government representatives to lambast whole industries – and imperil jobs in those industries – for the actions of a few?). Most recently, the FTC has launched a campaign to warn veterans about for-profit education:
- “Colleges are there to help you, right? Hmm, not so fast. Not every school has got your back. Some for-profit schools may care more about boosting their bottom line with your VA education benefits. Some may even stretch the truth to persuade you to enroll, either by pressuring you to sign up for courses that don’t suit your needs or to take out loans that will be a challenge to pay off.” (http://www.consumer.ftc.gov/blog/veterans-dont-get-schooled)
- “[S]ome schools manipulate the data or lie about how well their graduates fare.” (http://www.consumer.ftc.gov/articles/0395-choosing-college)
The FTC’s campaign, published in a news release and articles on the FTC’s consumer page, provides the above warnings about for-profit schools, offers questions to ask when choosing a school, and furnishes a link to filing a complaint with the FTC, should a consumer believe a school hasn’t lived up to its promises. The hyperlink to a consumer complaint page suggests that the FTC is actively seeking cases to pursue against for-profit educators. Any FTC enforcement action would likely involve allegations that a school deceived students about the cost, quality, or outcome of its program offerings – as the FTC is charged with protecting consumers from deception and unfairness in the marketplace. (Section 5 of the FTC Act broadly prohibits ‘‘unfair or deceptive acts or practices in or affecting commerce.’’)
The FTC’s campaign follows statements made by President Obama this summer that “soldiers and sailors and Marines and Coast Guardsmen, they’ve been preyed upon very badly by some of these for-profit institutions.” The message publicly broadcast over and over decries the supposed predatory practices of for-profit institutions. It is an unfair stereotype with a significant impact on these educators, harming their enrollment numbers and forcing institutions to lay off employees and shutter campus locations. Yes there have been bad actors; but both state and federal enforcement agencies have been active in investigating and addressing predatory and/or deceptive practices. Blackening the eyes of all for-profit educators, which results from statements such as those of the President or the FTC, is overreach.
Part of the problem for government regulators maybe their difficulty accepting that educators could legitimately make money while students earn a degree. They may have the same reservations expressed by a representative from Student Veterans of America: “I am always professionally skeptical about any institution that must answer to shareholders and investors before students and customers.” But having to answer to shareholders and investors is not necessarily a bad thing. It can serve as a check on institutions to ensure they are running their programs effectively and efficiently; it can motivate institutions to be innovative and find better ways to meet their consumers – i.e. their students – needs and demands. For-profit educators are responsible for advancements in online education and other innovations that make education more accessible.The result: for-profit educators are to thank for opening education opportunities to many underserved groups, like single mothers.
For-profit educators are in definite need of some effective marketing to promote their benefits and to dispel the negative conceptions presumed by and relayed by government regulators and outspoken detractors. They are making steps in the right direction with APSCU’s recent appointment of Mr.Dakduk. Dakduk is a former Marine and the former executive director of Student Veterans of America.
APSCU President Steve Gunderson said Dakduk’s hiring “builds on our member institutions’ commitment to excellence in post secondary education for military and veteran students.” With Dakduk’s presence, the industry may better overcome the flinching bias of so many regulators. Dakduk has built a reputation for success in his work advocating for veterans’ education. While at SVA, he grew the organization from a small group to one with chapters at over 900 campuses nationwide.
Dakduk’s move to APSCU is even a little ironic: In one of the FTC’s articles that warn veterans about for-profit education, the agency suggests veterans consult the SVA on the credibility of schools they are considering. Dakduk’s replacement at the SVA, D. Wayne Robinson, is a graduate of Trident University, a for-profit school.
For-profit education has had its bad actors, but problems in higher education span the spectrum of colleges and universities, and it is unfair – and ultimately detrimental to students and communities – to single out for-profit institutions. Dakduk understands this and should help for-profit educators improve their image.
A lawsuit filed in Massachusetts state court recently raised the issue of whether a former employee’s LinkedIn post announcing a new job could violate an anti-solicitation clause of a non-compete contract with the former employer.
In KNF&T Inc. v. Muller, staffing company KNF&T filed suit against its former vice president, Charlotte Muller, for violating a non-compete contract in a number of ways, one of which was a LinkedIn update which notified Ms. Muller’s 500+ contacts of her new job. Among those contacts were Ms. Muller’s former clients at KNF&T. KNF&T filed suit alleging that the update notification violated her one year non-compete contract by soliciting business from current KNF&T clients.
The court issued a narrow ruling stating that the posting did not violate the non-compete agreement because Ms. Muller’s new position in information technology recruiting did not directly compete with KNF&T’s work in recruiting administrative support specialists.
Since the court was able to resolve the case based on a differentiation in practice areas, it did not have to resolve the issue of whether a LinkedIn notification could violate the terms of a non-competition agreement. Such a determination will always depend of the particular facts of the case, such as whether the new position directly competes with the former employer, whether the individual is connected with former clients on LinkedIn, and the content of the notification.
Employees subject to a non-competition agreement should exercise caution when using social media to announce a new position. If they do make an announcement, they should consult the terms of their non-compete agreement to determine what could constitute a violation. For instance, if the non-compete only prohibits solicitation of the former employer’s current clients, the employee should be sure to exclude any such clients from the notification by selecting which groups receive the message. The time spent paring down the list of recipients is well worth avoiding a potential lawsuit.
LegalZoom and Rocket Lawyer Case over Misleading Advertising Heads to Trial – When is “Free” Really “Free”?
Last week, a federal judge in California declined to grant a summary judgment motion to LegalZoom.com, Inc., in its lawsuit accusing rival Rocket Lawyer, Inc. over claims of trademark infringement, unfair competition, and false and misleading advertising that focus on the use of the word “free” in advertisements by Rocket Lawyer.
LegalZoom and Rocket Lawyer are the two biggest names in the online legal services industry. Both companies provide users online legal services, including incorporation documents, and documents establishing divorces, trusts, and wills, for a small fraction of the price that it would likely cost if a lawyer handled these matters. LegalZoom began offering products in 2001 and has used the model of charging for legal forms. Rocket Lawyer came along in 2008 and has made forms free and charged for legal and advisory services to help people complete the forms.
On Rocket Lawyer, users are able to sign up for a free seven day trial that allows them free access to all services on the site. If the subscription is not cancelled within the seven day window, then it is converted to a paid subscription. In the complaint, LegalZoom alleges that ads run by Rocket Lawyer used the term “free” which it said violated federal law because users still had to pay state filing fees to finalize their incorporations, divorces and other filings, or sign up for a subscription to access the service.
Not long after the complaint was filed in this case, Charley Moore, the Founder and Executive Chairman of Rocket Lawyer, authored an insightful blog about why Rocket Lawyer is fighting LegalZoom in the case. Moore emphasized that many small businesses and individuals cannot afford the cost of traditional legal services and “free access to the basic tools of the legal system can both shield us and provide greater chances for success in the modern economy.”
In its decision last week, the district court held that genuine issues of material facts remain and denied LegalZoom’s summary judgment motion. The court was unwilling at this point in the litigation to rule that the advertisements by Rocket Lawyer regarding its “free” services were false as a matter of law because “a jury could reasonably conclude that the advertisements, when considered in context, are not literally false within the meaning [of the statute].” The court also held that at this point LegalZoom failed to carry its burden of proving that Rocket Lawyer’s advertisements actually deceive consumers.
The denial of summary judgment means that the case will proceed towards trial. This lawsuit could have potential implications for other businesses that use the term “free” in their advertisements as well as offering consumers a negative option enrollment plan. We will continue to follow the case here.
In September, 40 state attorneys general wrote to the U.S. Food and Drug Administration (FDA) asking the agency to take all available measures to issue regulations on the advertising, ingredients, and sale to minors of electronic cigarettes, also known as e-cigarettes or e-cigs. The full text of the letter is available here. The FDA has set a deadline of October 31 to issue proposals to regulate e-cigarettes, but the agency has delayed action in the past.
E-cigarettes are battery-operated nicotine delivery devices that are meant to replicate the flavor and sensation of smoking a tobacco cigarette. The sales of these products are rapidly growing and have doubled every year since 2008. In 2013, the industry is projected to reach $1.7 billion in sales. Tobacco giants Altria, which owns Philip Morris, and R.J. Reynolds, both of which have not previously been involved in the e-cigarette industry, are now launching their own brands.
E-cigarettes have been available for several years, but there has been very little regulation of the industry since its inception. However, the calls for the FDA to explore regulation are becoming louder, and momentum is growing to have the FDA take action. Last month, Rep. Henry Waxman (D-Calif.) and three other House Democrats sent a letter to FDA Commissioner Dr. Margaret Hamburg urging the agency to take action on regulating e-cigarettes. Those same representatives also sent a letter to the Chairman of the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, and the Subcommittee on Health urging the subcommittees to hold a hearing on the increased use and health impact of e-cigarettes.
In the past, the FDA has stated that it would not feel compelled to regulate e-cigarette companies unless they overtly advertised their products as smoking cessation devices. We have previously looked at Federal Trade Commission regulation of e-cigarette advertising claims. The FTC has jurisdiction to regulate advertisements for any product, but has yet to flex enforcement muscle with regard to e-cigarettes. There are currently no federal rules about advertising e-cigs to young people, but the attorney general letter asked the FDA to “ensure that companies do not continue to sell or advertise to our nation’s youth.”
There has been very little regulation of the industry since its inception– partially because the extent of the FDA’s authority to regulate e-cigarettes is not clearly defined. In 2010, the U.S. Court of Appeals for the D.C. Circuit issued an opinion in Sottera, Inc. v. Food & Drug Administration, affirming the district court’s decision that the FDA could not regulate e-cigarettes as a medical device under the Food, Drug & Cosmetic Act and finding that the FDA’s authority is limited to traditional tobacco products. The FDA also has authority to regulate e-cigarettes under the Tobacco Control Act of 2008, but that authority is limited. Specifically, the Tobacco Control Act authorizes the FDA to regulate “tobacco products,” giving the agency authority to impose restrictions on their sale, advertising and promotions, and establish other standards for their distribution and production.
It remains to be seen what actions will be taken by the FDA in response, but it does seem as if some type of regulation may be on the horizon. The industry will need to adapt to these changes and be active in the rule making and comment process to make sure that the regulations proposed are fair. We will continue to monitor developments on e-cigarette regulations here.
Google recently announced that it would be taking action to demote websites that profit from the use of mugshot photos. These mugshot sites compile booking photographs taken after people’s arrests and publish them along with the arrestees’ names and information concerning the charges against them. Individuals who want their mugshot and arrest record deleted from the site usually must pay a fee ranging anywhere from $10 to $400. Until recently, when a Google user searched the Internet for the name of a recent arrestee, the search hits would include, and often prioritize, mugshot sites. Owners of those sites were content with that outcome; many others were not.
New York Times writer David Segal was one of the latter. In a recent article, Segal took Google to task for not penalizing mugshot sites, which many believe traffic in exploitation. Segal argued that Google should take corrective action because it had prioritized the sites in contravention of its own stated corporate goal that favors original web content. Mugshots do not offer original content; instead, they gather and use images and text from third-party sources.
Before his article ran, Segal contacted Google to discuss the issue. Google responded that it had been working to address the problem in a consistent way. Days later, a Google spokesperson confirmed that mugshot sites do not comply with one of the search giant’s guidelines. To address the problem, Google amended its algorithm, presumably to disfavor sites without original content.
Consequently, mugshot sites are now pushed off the front page of Google search results. People digging for dirt now have to look a little bit harder.
Others who object to mugshot sites have taken the fight to regulators and legislators. On October 7, the Maryland Consumer Protection Division settled its case against the owner of Joomsef.net for false and deceptive advertising. Joomsef’s owner, Stanislav Komsky, published information on the site about traffic offenses, but added statements falsely suggesting there had been an arrest. Persons identified on the site had to pay $40 to $90 to have the information removed. As part of the settlement, Komsky must take down the site, return all payments to consumers, and pay a penalty of $7,500.
Other states are addressing the problem through legislation. Segal points out that Oregon and Georgia have passed laws this year giving site owners 30 days to take down an image, free of charge, if an individual proves that he or she was exonerated or that the individual’s record has been expunged. Utah attacked the problem another way. There, sheriffs are prohibited from giving out headshots to websites that charge for deleting them. Lawmakers in other states, like Florida Representative Carl Zimmerman, have introduced legislation targeting the sites, but many of those bills died from lack of support.
These acts of government are constrained, as they should be, in view of free-speech guarantees under the First Amendment. By contrast, the private sector is not so limited and, therefore, may end up striking the decisive blow against mugshot sites. Things are heading in that direction. MasterCard, Discover, American Express, and PayPal recently pledged to sever all ties with mugshot sites, and Visa has asked merchant banks to investigate the practices of the sites.
A great way to make money is to develop a product or service that responds to a consumer want or demand, and then to stay ahead of prospective competitors by offering better pricing or quality. A not-so-great way to make money is to convince consumers to buy a product or service that they don’t really want or need, at inflated rates. A highly dubious way to make money is to trick consumers into paying for something they didn’t want and didn’t mean to buy.
Businesses operating in this third category, which may include a scareware marketer or two, have to consider risk versus reward. Is the reward of temporary profits worth the risk of legal action; what is the likelihood of legal action; and what is the potential cost of such action?
Someone who operates on tricks over treats, or by pure scareware tactics, may expect business to dry up as consumers learn to avoid their traps. Such an operator must also face the looming threat of consumer legal action, government intervention, or run-ins with credit card companies alarmed by high chargeback rates.
For these types of businesses in the mobile marketing space, the cost of potential government intervention is going up. A recent settlement between the Federal Trade Commission and Jesta Digital LLC points to the severe penalties a business may face for operating on the sidelines of fair play. The consequences include a hefty fine, consumer refunds, restricted billing practices and stringent compliance measures for years to come.
Jesta (which also does business as Jamster) is known mostly for its marketplace of ringtones, photos, videos and apps. Starting in 2011, it ran a scareware campaign, purportedly for anti-virus software, that the FTC asserts crossed the line into deceptive advertising. The ads ran on the free version of the Angry Birds app for Android. Using a graphic that looks like the Android robot logo, the banner ad displayed a warning that viruses had been detected on the device – even though no virus scan was conducted. According to the FTC, when the consumers clicked on the “remove [virus]” button, or similar “warning” buttons, Jesta directed them through a number of pages about virus protection that left to very fine print a monthly service fee for ringtones and other content.
The FTC alleges that consumers were even charged at the instant of pressing a “Protect Your Android Today” button. Through the use of Wireless Access Protocol (WAP) billing, the company was able to charge consumers through their cell phone numbers without needing to obtain express authorization. (It may be that the use of the billing practice actually spurred the FTC into action as wireless carriers initiated their own penalties against Jesta for the large number of consumers demanding refunds.) The FTC also alleges that the anti-virus software often failed at download (apparently at one point, only 372 people out of 100,000 subscribers actually received some sort of anti-virus app download link).
The FTC describes numerous deceptive practices: mimicking the Android logo to confuse consumers into believing the virus warnings were credible, charging consumers without their knowledge or consent, failing to provide services charged for. The company apparently was aware that its scareware tactics crossed the line, as an email correspondence among company executives noted that the chief marketing officer was “anxious to move our business out of being a scam and more into a valued service.”
So now the company must pay the FTC a $1.2 million penalty and offer to refund consumers. The process of identifying and notifying consumers of their refund options and tracking all this to show to the FTC will be a costly undertaking. Another major cost will be the stringent and detailed billing practices that the company – and all participants, including principals and agents – must adhere to, disclosures it must make, and compliance monitoring and recordkeeping requirements it must adhere to, for 20 years. The settlement agreement is far more than a hand slap; its terms keep Jesta (and its principals!) beholden to the FTC for the foreseeable future.
Mobile marketers who may calculate risk versus reward and decide that a get-rich-quick scheme is worth the risk should think again. The FTC is making deceptive marketing tactics, like many scareware campaigns, a priority. We have seen strong action from the agency in the recent past, including hefty penalties for the company Innovative Marketing and its principal Marc D’Souza. Moreover, the newly-appointed head of consumer protection at the FTC, Jessica Rich, has noted that the FTC is expanding digital enforcement, increasing the risk of getting caught in the agency’s cross-hairs.
On October 3, 2013, the Consumer Financial Protection Bureau announced it had filed a complaint in federal district court in Washington state against a leading debt-settlement payment processor, Meracord LLC, and its CEO. The CFPB contends that Meracord helped third parties collect millions of dollars in illegal upfront fees from consumers.
The complaint alleged violations of the Federal Trade Commission’s Telemarketing Sales Rule (TSR) and the Consumer Financial Protection Act of 2010. The CFPB contended that Meracord maintained accounts and processed payments for consumers who had contracted with providers of debt-relief servicers and mortgage assistance relief services. As is often the case, when consumers enroll in a debt-relief program, they also enter into a separate agreement with a payment processor, which establishes and maintains a “dedicated account” for the consumer. At the time of enrollment, the debt-relief service provider instructs the consumer to stop paying his or her unsecured debts and, instead, to make monthly payments to the payment processor. The processor can later pay renegotiated debts to the creditor and also pay the debt-relief servicers’ fees.
The CFPB alleged that, since October 27, 2010, Meracord processed payments for more than 250,000 consumers receiving debt-relief services from more than 250 debt-relief service servicers. According to the agency, consumers paid debt-relief service providers before any debts were settled. The Telemarketing Sales Rule has special requirements for debt reduction services. In particular, providers are not allowed to request or take fees for services before providing debt-relief services resulting in actual renegotiation or other settlement of a consumer’s debt and a payment by the consumer to a creditor. The FTC asserted that Meracord processed payments for debt reduction services which routinely charged advanced fees to consumers in violation of the TSR.
The TSR also makes it unlawful for third parties to assist others in violating the TSR. The CFPB used this section of the TSR against Meracord. Since Meracord collected the payments from consumers and would know whether or not they had been disbursed to creditors, and when they had been disbursed to the debt-relief servicers, Meracord would have knowledge that the debt-relief servicers were violating the TSR by collecting fees prior to delivering debt-relief services that resulted in payments to creditors.
Meracord and its CEO have agreed to settle the case. In the Stipulated Final Judgment and Order, Meracord and its CEO, Linda Remsberg, agree that they will permanently enjoined from providing account-maintenance or payment-processing services to any provider of a debt-relief service or a mortgage assistance relief service. The proposed settlement (which must be approved in court) also provides for a civil money penalty of $1.37 million and compliance reporting and monitoring, as well as ongoing recordkeeping requirements.
The CFPB’s action signals that it will use its authority to reach organizations that it believes provide substantial assistance to others allegedly violating consumer protection laws within its jurisdiction. CFPB Director Richard Cordray said, “By taking a stand against those who facilitate illegal activity, we can root out harmful behavior across the debt-settlement industry and better protect consumers.” Thus, it is not only those companies dealing directly with consumers who need to be cognizant of the CFPB’s reach. In particular, organizations within the “chain” of industries such as debt-settlement and credit repair, should review their compliance with laws and rules the CFPB may enforce (usually shared with other agencies such as the FTC), and which include the Fair Debt Collections Practices Act, the Fair Credit Reporting Act, the Telemarketing Sales Rule, the Business Opportunities Rule, and other consumer financial-related statutes.
It’s quite clear that the Federal Trade Commission and the Federal Communications Commission view existing federal consumer protection and communications statutes as fully applicable to new modes of communication such as texting. One excellent recent example is the FTC’s stipulated settlement, including a payment of $1 million, with a debt collection agency that had sent out text messages in order to collect debts.
The FTC had filed suit under the Fair Debt Collection Practices Act (FDCPA) against National Attorney Collection Services, Inc., National Attorney Services LLC, and Archie Donovan (as an individual). This appears to be the first FTC complaint alleging the illegal use of text messaging to collect consumer debts. In addition, the defendants were also alleged to have violated the FDCPA in more traditional ways by publicly revealing consumer debts to family members and co-workers, sending mailings that had a picture on the envelope of an outstretched arm shaking out an upside-down consumer to empty the money in their pockets, and falsely portraying themselves as law firms or attorneys in phone calls and mailings, as well as in text messages. Of course, the “older” methods of violations were troublesome in and of themselves, but there were two specific points that we see as trend-setting in FTC enforcement.
The first point is the FTC’s emphasis that the medium of text messages does not change disclosure obligations under the FDCPA. The FTC has continued to crack down on illegal behavior that may be carried out by non-traditional means. As Jessica Rich, director of the FTC’s Bureau of Consumer Protection, has said, “No matter how debt collectors communicate with consumers — by mail, by phone, by text or some other way — they have to follow the law.”
The consumer protections in the FDCPA that require the disclosure in initial communications that the company is a debt collector and that any communications may be used to collect a debt apply equally to text messages, even though there may be significant space and size limitations. Likewise, any follow-up text message must state that the communication comes from a debt collector.
The second noteworthy point was the level of consent required by the stipulated order. The stipulated order provides that “express consent” shall mean that prior to sending a text message to a consumer’s mobile telephone: “(i) the Defendants . . . shall have clearly and prominently disclosed that the debtor may receive collection text messages on mobile phone numbers . . . in connection with the transaction that is the subject of the text message; and (ii) the individual has taken an additional affirmative step, including a signature or electronic signature, that indicates their agreement to receive such contacts.”
The FTC appears to have adopted a more stringent definition of consent (similar to the FCC) and is using the stipulated order as a means of notifying companies and consumers of the higher standard. Of course, it is possible to argue that the FTC is only requiring these particular defendants to meet the higher standard because of their alleged prior bad acts. However, we believe it more likely that the FTC is attempting to enforce a standard of express consent similar to that which the FCC has recently promulgated. Consequently, all companies are well advised to meet this higher standard of consent.
The FTC has now put the industry on alert to ensure that their text messages comply with any applicable law. The idiosyncrasies of modern methods of communication do not limit the compliance obligation. Ignorance is not a defense, even though Donovan’s attorney said that “the companies are now in compliance,” and that “nobody was intending to violate the law.”