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

December, 2002

FCC & FTC
The American Teleservices Association has won a temporary extension of the deadline for comments on the revisions to the Telephone Consumer Protection Act. The new comment period expires on December 9, 2002. The FCC granted the ATA's request for an extension based on its release of documents it has created based on consumer's complaints under the TCPA which the ATA needed time to review. The FTC's new telemarketing rules are expected to be released December 19, 2002.

U.S. Senate
Senator Richard C. Shelby (AL) recently gave a speech before the Consumer Federation of America and, in part, addressed telemarketing. He stated he was more concerned with the access third parties have to consumer's financial information rather than the annoyance caused by direct mail or telephone contact. He stated that information such as this should be under the control of the consumer and that he continued to investigate the privacy provisions of Gramm Leach Bliley and the Fair Credit Reporting Act.

U.S. Supreme Court
The United States Supreme Court will hear a case involving charitable fundraising and telemarketing costs in the coming term. Errol Copilevitz will be counsel for the fundraisers.

CALIFORNIA
Abill has been proposed in the California General Assembly which would delete an existing state law prohibition on faxing unsolicited advertising material. The bill would leave the existing provisions regarding e-mail unchanged and has no effect on the federal restrictions on delivering of unsolicited advertisements by facsimile. Lawsuits under the TCPA for unsolicited faxes are perhaps the most common type of private plaintiff's action under that law.

A bill has been proposed in the California Senate which would delay the California "do-not-call" list implementation until April 1, 2003.

KENTUCKY
Some legislators in the State of Kentucky have indicated that they intend to reinstate some of the exemptions to registration which were removed from the Kentucky telemarketing law.

MISSOURI
The Missouri Attorney General continues to take an aggressive stance regarding its "do-not-call" lists even against companies which are exempt by statute from the list. You should remember that the list exempts several types of entities from its restrictions. It would be a good idea to review the statute and its exemptions prior to paying any demand for violations as the statute does exempt certain types of businesses. It would also be a good idea to implement these telephone numbers even if you are exempt as these consumers are unlikely to purchase and are likely to complain.

MONTANA
The Montana legislature is considering a bill which would create a state "do-not-call" list. The list would contain several of the same exemptions that are found in the Missouri "do-not-call" list law, i.e. exemption for a federally licensed entity which is required to maintain a "do-not-call" list and appointment setting by licensed entities. The list is to be implemented no later than January 1, 2004.

NEW JERSEY
The New Jersey Assembly has amended its proposed "do-not-call" list law to specifically state that it applies to telemarketers whose principal place of business is located outside the state.

OHIO
The General Assembly of the State of Ohio is considering a bill which would prohibit making any false or fraudulent representation to obtain a registration or registration renewal. The bill also prohibits intentional blocking of caller ID.

PENNSYLVANIA
The Pennsylvania General Assembly is considering a bill which would amend a proposed disclosure requirement applicable to telemarketers. The new bill does not require disclosure of the individual name of the telemarketer and a telephone number or address which the entity on whose behalf the call is being placed may be contacted.

The Attorney General's office has issued a letter stating that several names were omitted from the quarterly version of the state "do-not-call" list. I had a discussion with the Pennsylvania Attorney General on this topic that the state would not attempt to enforce complaints by citizens whose names were inadvertently left off the list. The names will be added to the next quarterly list, and the state has also issued a supplemental list which does include these names.

WISCONSIN
The State of Wisconsin has continued to take the interpretation that a T1 or other type connection is not a "telephone line" but rather is a number of telephone lines based on the total number of conversations the connection can support at a given time. This interpretation, not supported in the statute or regulation, would mean that most telemarketing entities of any size would be forced to pay $20,000 per year (the maximum) to access the Wisconsin "do-not-call" list. We are currently considering options to delay and/or modify this arbitrary and unreasonable requirement. Please contact me if you would like to discuss.