From the Legal Hotline (1-877-NEWS-LAW)
Q. We are wondering if you know anything about legal requirements for FTC compliance?
The FTC states we must inform consumers at the time of purchase and prior to re-billing that subscriptions will be auto renewed unless cancelled by a certain date. We do both of those things (on our sales page and in their purchase confirmation email, then later the month before renewal we email again with the option to opt out – instructions on how to do that anytime are also available on our website).
The issue we’re having is that when customers opt out of getting emails from us our CRM will not allow us to send emails, including their upcoming renewal notice. Or they mark us as spam in their email provider and the emails bounce back as undeliverable. So while we attempt to send communication, they may not receive it. (If they receive it and don’t open we can prove it was sent, but if they are “unmarketable” emails we cannot prove we attempted to communicate). In this case when a dispute is made against us for wrongful rebilling because a customer won’t allow us to contact them, is there any way for us to push back or do we just have to say “yep, we didn’t tell you, here’s your money back”?
A. The Restore Online Shoppers Confidence Act (“ROSCA”) and FTC guidelines require the vendor to obtain “express informed consent” for automatic renewals. I did research that term and did not find much where emails are bounced back. I would think that it’s wise to have some record that the emails were actually sent to the proper email on record. As you say, if they receive it and don’t open, you can prove it was sent.
As for “unmarketable” emails, you cannot prove you attempted to communicate. If this occurs, is there any way you can provide notice in another manner—another email, a lawful recording of a phone call, or even snail mail directed to their latest home address?
I think you are smart to be careful due to increased regulatory scrutiny of online activities.
Q. I have a question regarding public notice requirements for land use and zoning ordinances. Over the last 10 years our county has had a large turnover in planning & zoning directors, some had experience, others none. The most recent director changed the advertising verbiage and how many times the ads are published. I am not confident they meet the requirements and there is a statement which was added that I question the legality of. They also quit publishing a map which according to Florida Statutes should also be part of the ad. I am attaching a sample notice for you to look at. If you can give me guidance on if this is a legal publication or not, I would greatly appreciate it.
A. Section 125.66 (regarding notice of hearings relating to rezoning or land use change ordinance enactment procedures for larger parcels) does require a geographic location map which clearly indicates the area within the local government covered by the proposed ordinance or resolution. There are also requirements regarding the format and placement apart from regular legal ads and classified ads. They would have to advertise twice, once before each hearing if it involves a land use change based on this portion. As you point out, the notice appears out of compliance with these requirements.
Q. I know you’ve answered a variation of this question for me in the past, but I am hoping you can direct me in this specific case. We received copyright inquiries from a law firm by the name of Higbee and Associates for a copyright issue of a photo owned by the Associated Press. Unfortunately, our staffer, who no longer is with us, had used a photo online he shouldn’t have. I have since removed the photo, of course, but I have not responded to the claim. How should I proceed with this?
A. These demand letters are fairly common and this particular firm specializes in sending them. Sometime, AP may be able to help if their photo is the subject of the demand; it depends on the situation. I can reach out to them if helpful. Attached is an article I wrote about these letters and suggested tips in avoiding and responding to them. If you have any specific questions after reading this let me know.
Q. I have a question or more of an objection on legal advertising. Many of the city clerks are telling me that they would love to run with us, but because we are a weekly, most of their ads are time sensitive and have to run 10 days prior to a meeting or three days after a meeting and this does not work with our Wednesday distribution and Monday deadlines. How are other publications overcoming this? We have seven municipalities that all have different council meeting dates.
A. We reached out to one of our weekly publishers on your question. She is not familiar with ads having to run 3 days following a meeting but the requirement of 10 days prior means at least 10 days (but not precisely) so it hasn’t been a problem as long as her paper publishes in the edition 2 weeks prior to the meeting dates. It requires planning on the part of the different government entities and her ad department. When it comes to legal and display public notices, she tries to be flexible with her notice deadline as possible, even taking ads late on Tuesday while in the final stages of production.
If there are ads which must publish 3 days after being problematic for a weekly she’s not sure how that could be solved. She would definitely double check the timeframe.
Finally, she has even gone as far as to send reminder emails to the local planning and zoning office when they don’t receive ads, because she knows their schedule and which week they should have them. The goal is to keep all government offices relying on the paper to help keep them on the right side of the requirements. It makes for a better, more secure business relationship and less concern they will attempt to pull them and put them online.