A Monthly Review of Issues Affecting Commercial Telemarketing by Copilevitz & Canter, LLC, Attorneys at Law

January, 2002

FCC
The Federal Communications Commission has imposed a $90,000 fine against a business for faxing unsolicited advertisements in violation of the Telephone Consumer Protection Act. Although this FCC action is serious, the TCPA is often now enforced by the plaintiff's class-action attorneys who demand sums much greater than $90,000.

FTC
The Federal Trade Commission has settled allegations against a telecommunications company regarding "cramming". According to the FTC, the business deceptively advertised a free service and then added unauthorized charges onto callers' phone bills.

The FTC, as well, may be moving toward publishing a nationwide "do-not-call" list. One source said the details of such a proposal may be forthcoming this month.

NATIONAL "DO-NOT-CALL" LIST
Christopher Dodd (D-Conn.) recently introduced a bill which would create a national "do-not-call" list. The bill would require the FTC to establish the list and provide notice to consumers concerning its existence. The bill will allow each state, however, to maintain its own list and would also change the federal calling curfew from 9:00 a.m. to 9:00 p.m. and prohibit calls from 5:00 p.m. to 7:00 p.m. Thus, Congress is not immune from the introduction of draconian bills more often found at the state level.

ARIZONA
The State of Arizona has filed a suite against Qwest Communications alleging that Qwest charged consumers for unauthorized services even after consumers complained.

CALIFORNIA
Our firm recently received an email complaint from a resident of the State of California who was solicited by a third-party "do-not-call" list service operated by a notorious anti-telemarketing advocate. The complainant intended to contact the California Attorney General regarding the solicitation he received and stated "I will not pay $20 per year for your service and believe you are just as bad, even worse than those who attack." Many of you have received solicitations from third-party list marketers in the past. Please contact me if you would like to discuss their legality and effect.

The California Department of Insurances has given notice that it will hold a hearing on February 8, 2002, concerning how insurance companies use information gathered about consumers. The issue of information gathering will continue to be of primary importance at the state and federal level in the coming year as more and more states pass their versions of the restrictions found in the Federal Gramm-Leach Bliley law. Please contact me if you have any questions concerning compliance with these provisions.

MICHIGAN
The Michigan House is considering a bill which would specifically apply the terms of its Home Solicitations Sales Act to telephone solicitations. The home solicitation sales law requires a written contract and a three-business day cancellation period for all transactions.

The Michigan Senate is considering a resolution which would urge the United States Congress to enact a national "do-not-call" list.

MISSOURI
The Senate in Missouri is considering a bill which would delete several of the exemptions found in the state's "do-not-call" list. In my opinion, this does not alleviate the constitutionality problem caused by the fact that some organizations are exempt from the law's restrictions. The existence of the exemptions at one time, show the true intent of the legislature even if they are later removed.

NEVADA
The Nevada Attorney General has sued a telecommunications provider concerning slamming allegations.

NEW HAMPSHIRE
The State of New Hampshire is considering a bill which would create a state "do-not-call" list.

NEW YORK
The Senate in New York is considering a bill which would allow individuals to register fax numbers with the state "do-not-call" list.

The New York Senate is considering a bill which would regulate the use of predictive dialers and prohibit placing a call for which no person acting as a telemarketer is "immediately available to converse with a person" at the number called. A similar law has already been adopted in California but does not go into effect until July.

NORTH CAROLINA
North Carolina has settled with a telecommunications provider regarding disclosure of additional monthly surcharges on its customers. Pursuant to the Telemarketing Sales Rule and state law, all charges should be conspicuously displayed and disclosed to the consumer.

OREGON
The Oregon Attorney General has settled with a marketer of charge cards based on allegations that the card was deceptively marketed to consumers and could only be used to purchase from the sellers' catalogue rather than any goods or services.

PENNSYLVANIA
The Pennsylvania House is considering an act which would require that telemarketers disclose that no purchase or payment is necessary to win a prize if a prize promotion is included in a given campaign. This disclosure is already required by federal law.

TEXAS
The Texas "do-not-call" list will not be made available to telemarketers until April but already 54,000 Texas residential phone subscribers have paid $2.50 each to sign up on the list.