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

July, 2004

FEDERAL TRADE COMMISSION
The FTC has signed 62 million telephone numbers to the national “do-not-call” list and logged more than 428,000 complaints from consumers against more than 130,000 companies. As a whole, less than one percent of persons whose numbers are on the list have complained about its operations or calls from telemarketers.

The FTC has issued its biannual agenda which includes a summary of its actions under the Telemarketing Sales Rule. Upcoming regulatory action on the rule includes a new fee schedule for the “do-not-call” list to go into effect September 1, 2004.

The FTC has proposed a rule regarding definitions applicable to its regulations promulgated pursuant to the Fair Credit Reporting Act. The FTC relies on its analysis of the established business relationship exemption for the Telemarketing Sales Rule and has concluded that a consumer would reasonably expect to receive information from an affiliate of an entity from which the consumer requested information.

The FTC has obtained a final court order shutting down an Arizona based company which allegedly defrauded consumers by selling a service to safeguard personal financial information from unscrupulous telemarketers. The order prohibits false representations in the future and billing consumer accounts without prior authorization.

U.S. CONGRESS
A bill has been introduced in the Senate called the Junk Fax Prevention Act of 2004. The law would amend the TCPA to allow unsolicited advertisements to be sent to businesses with whom the sendor has an established business relationship and the advertisement contains certain disclosures. Recipient businesses should be allowed to make “do-not-fax” requests which would sever the ability of the business to send such advertisements. The bill would allow the FCC to determine a time limit on established business relationships. It would also require the Commission to submit an annual report to Congress regarding enforcement of junk fax provision laws.

ARIZONA
Arizona has amended its telemarketing registration law to clarify that entities required to file a limited registration, only, are subject to the provisions of the national “do-not-call” list for intrastate calls.

ARKANSAS
Arkansas has filed suit against a satellite television company from Texas alleging violations of the national “do-not-call” registry.

CALIFORNIA
A bill has been proposed in the California Assembly which would prohibit sellers of mobile telephone services from selling or licensing lists of subscribers to any third party. The bill would also require explicit “opt in” for the telecommunications provider to include subscribers in directories of telephone numbers.

A bill requiring disclosure of the location of a customer sales representative has been amended to require disclosures only upon request. The law would apply to inbound or outbound telephone customer service centers.

GEORGIA
A n appellate court has overturned a trial court’s ruling that a class action in Georgia should not have been certified as a class action. The appellate court ruled that the action should proceed as a class action.

KANSAS
A college has won a federal court proceeding ruling that its insurer was required to pay for its defense in the face of a claim that it violated the TCPA restrictions on unsolicited faxes. The college had been sued by a trucking company in eastern Illinois. You may have read that this part of Illinois is one of the class action capitols of the country.

LOUISIANA
A bill has been proposed in the Louisiana House which would change the state curfew from 8:00 a.m. to 8:00 p.m., to 9:00 a.m. to 9:00 p.m.; require the caller to state his first and last name within the first 25 seconds of the phone call; and provide a telephone number consumers can call to be added to the telemarketer’s “do-not-call” list.

MICHIGAN
A law has been enacted in Michigan which would create a law enforcement memorial and monument but bans fund raising for that monument through the use of telemarketing.

NEW MEXICO
The New Mexico Human Services Department has proposed a regulation which would ban telemarketing or face-to-face marketing with potential members of managed care health insurance organizations. Rules like this are considered to be content-based restrictions on speech. It is possible that this regulation is unconstitutional under this analysis.

NEW YORK
A New York court has ruled that a TCPA plaintiff alleging violation of the restriction on recorded voice messages was not properly filed as a class action. The court ruled that New York law specifically prohibited it from being a class action. New York provides that a statute imposing a penalty or minimum measure of recovery is not subject to class action unless it specifically states that class action relief is available.

OKLAHOMA
A suit has been filed in Oklahoma alleging that a satellite company failed to register as a commercial telephone seller and used an autodialer to place calls to a 911 service, hospital and a police station. Calls using predictive dialers are prohibited to all public safety telephone numbers including police stations, etc.

TEXAS
A Texas appellate court has held that Texas must “opt out” of private TCPA suits. Otherwise, such suits are allowed in state court in Texas.

VIRGINIA
Virginia’s amended telemarketing law went into effect July 1, 2004. It contains a ban on abandonment and requires that telephone solicitors adhere to the national “do-not-call” list law.

WISCONSIN
A Wisconsin judge has struck down portions of Wisconsin’s “do-not-call” list regulations. The opinion upheld the fees provision portion of the list and struck down portions of the regulations leveling fines and creating private causes of action under the regulation.