August, 2003

TCPA
The ATA has announced that it intends to challenge the FCC's order creating new TCPA rules. The ATA also intends to seek a stay of the order's provisions with the agency.

TCPA
Purported class actions under the TCPA for unsolicited faxing, delivery of recorded messages, and other alleged violations continue to be filed at a high rate. Your business should assure compliance with this law and avoid being part of this litigation. The FCC has amended its position on faxing to established customers, and as of August 25 will require that you have written permission to fax an advertisement to any telephone number. You should review any faxing program immediately to ensure compliance. Unsolicited faxes are banned in almost all circumstances and could cause your business major damage.

CALIFORNIA
Two nonprofit organizations who participated in the California abandonment hearings before the Public Utilities Commission were awarded more than $30,000 in legal fees by the Commission for this participation. As a participant in this hearing, I can say that it was obvious from every representative in attendance that these organizations' sole intent was to prevent all telemarketing in the future through any means necessary. It amazes me that the Commission has decided to compensate them for this viewpoint.

A bill has been proposed in the California General Assembly which would require compliance with the FTC's Telemarketing Sales Rule. This appears to be an attempt to close the "gap" in jurisdiction over intrastate telephone calls.

COLORADO
The Colorado Public Utilities Commission has adopted rules implementing the state "do-not-call list. The rule implements a sliding scale for fees for the list ranging from $500 for businesses with more than 1,000 employees or free for businesses with fewer than 5 employees. The rule allows the official list to incorporate numbers included on an earlier unofficial "do-not-call" list if those numbers are verified. It is extremely problematic that a state agency would accept an "unofficial" list and this could be a constitutional flaw with this statute.

ILLINOIS
Illinois has passed a law which requires that any business using a telemarketing campaign which offers free-goods or services on a trial basis send an invoice to the consumer that the consumer may use to pay the periodic fee or cancel the goods or services after the end of the free-trial period.

LOUISIANA
Louisiana has passed a law which adds exemption to the "do-not-call" list for calls from auto dealers to previous customers to set an appointment for a test drive. There is no time limit on this exemption, although the normal established business relationship is limited to six months.

MAINE
The Bureau of Corporations has issued a proposed rule regarding automated telephone solicitations in the State of Maine. Responses are due by August 2, 2003.

MISSISSIPPI
Mississippi has adopted an $800 fee as well as requiring a $50,000 bond for purchase of its "do-not-call" list. This purchase is different than the Mississippi telemarketing registration law which often exempts most businesses. Mississippi joins Louisiana as the only states which require bonds for purchase of their lists. The applicability of this list to interstate calls is uncertain as the FCC has ruled that it will "almost certainly" preempt state law once the national list is in place. Until then, however, this onerous bond requirement exists.

NEW HAMPSHIRE
New Hampshire has passed a "do-not-call" law which exempts calls on behalf of charities, calls by newspapers and political calls. The Department of Justice is authorized to impose a civil penalty of $5,000 for each violation although the law does provide for an affirmative good faith defense.

NEW YORK
New York has passed a law which authorizes transfer of the numbers included on the state "do-not-call" list to be included on the Federal Trade Commission's national "do-not-call" list. At least two states' Attorneys General have stated that they do not intend to cease operation of their "do-not-call" lists. It remains to be seen whether states will file suit or the FCC will actually preempt application of these lists to interstate calls.

NORTH CAROLINA
A bill has been proposed in the North Carolina Senate which would create a "do-not-call" list. The bill would also require disclosures similar to those required by the Telemarketing Sales Rule and would create an "immediate disconnect" requirement.

Calls by or on behalf of tax exempt nonprofit organizations would be exempt as well as calls to set a face-to-face meeting.

NORTH DAKOTA
This firm has filed a civil rights challenge to North Dakota's "do-not-call" list. Our clients have moved for a preliminary injunction against the law as applied to charitable solicitations. We intend to seek an injunction because the law lacks procedural safeguards required by the First Amendment and favors some commercial speakers over nonprofit organizations.

PENNSYLVANIA
A bill has been proposed to amend the states' "do-not-call" list law to include a "do-not-e-mail" list which would be effective July 1, 2004. It is difficult to imagine a situation in which this list could work to advance any legitimate consumer interest.

The Commonwealth of Pennsylvania has become increasingly active with regard to enforcement of its "do-not-call" list law. This may be because individual complainants are entitled to some portion of the penalty collected for any proof of violation.