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

November, 2004

FCC
The FTC has established a fifteen day safe harbor for calls to numbers recently "ported" from wire line to wireless numbers. This fifteen day safe harbor means that you will be required to scrub against a ported number database at least every fifteen days. Neustar is the company designated by the FCC to administer this list and is available at www.tcpacompliance.com. possibleNOW.com also offers access to Neustar's database. The FCC has delayed implementation of the new rules requiring a signed written document to send a facsimile for six months through June 30, 2005. In the Order, released on October 1, 2004, the FCC acknowledged that the TCPA likely will be amended to allow faxes to be sent to businesses or other recipients with whom the sender has an established business relationship. The FCC has requested comments regarding whether it should preempt state "do-not-call" lists with regard to application of interstate calls. Now is the time to prepare your comments to the FCC showing that a national system best protects consumer rights and allows businesses easy compliance. State attorneys general can enforce the federal laws so there is no reason why the FCC should not make this decision. Please contact me if you would like assistance in drafting appropriate comments. The FCC announcement that the new rules regarding unsolicited faxes will be delayed until June 30, 2005, was published in the Federal Register this month. Effective October 18, 2004, the FCC implemented regulations applicable to commercial text messages generally prohibiting unsolicited commercial messages or implying other restrictions to their use. Our firm has prepared a Memorandum on this topic which I can provide you upon request.

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
NAAG has published a summary of state attorney general telemarketing actions to date in September 30, 2004. The chart is available at: http://www.naag.org/issues/pdf/20041005-Operation-Roaming-Charge-Chart.pdf, and includes the name of the defendants, the action taken (e.g. settlement, suit filed, etc.) and a one-word reason for the suit (e.g. deceptive trade practices, etc.).

US POSTAL SERVICE
The United States Postal Service has announced a major initiative against telemarketing fraud. The Postal Service is one of at least three federal agencies with consumer protection jurisdiction in this area.

US SUPREME COURT
The United States Supreme Court has rejected an appeal from the Tenth Circuit decision upholding the national "do-not-call" list.

CALIFORNIA
Governor Arnold Schwarzenegger has vetoed a bill which would require a disclosure of location of telemarketer upon demand for inbound or outbound calls. This bill is one of several anti off-shore laws being considered in various states. Governor Schwarzenegger has signed a law which prohibits cellular telephone providers from including subscriber telephone numbers in telephone directories without first obtaining consent from the consumers.

ILLINOIS
Illinois has filed suit against two Canadian telemarketing companies alleging unauthorized transfers from consumers' accounts under the guise of sales of the new Medicare discount prescription drug card program.

IOWA
Iowa has filed suit against a Delaware telemarketer based in Arizona alleging improper withdrawals from consumers' bank accounts. The Telemarketing Sales Rule requires specific disclosures with regard to draft payments from consumers' accounts.

LOUISIANA
The Federal Court in Louisiana has ruled that class-action was proper under the Telephone Consumer Protection Act and that the suit was properly brought in federal court.

MINNESOTA
Minnesota has filed suite against a telecommunications company alleging that its telemarketers transferred persons' long distance provider without consent. The Minnesota Attorney General's Office has issued a Memorandum to all political candidates announcing its intention to enforce its state law regarding delivery of recordings which does not allow political messages. As you know, the federal law allows political messages, and almost every state telemarketing statutes contains a similar exemption. Recently the FCC has asked whether it should preempt a similar state law in North Dakota. The Attorney General has announced if it receives three or more verified substantiated complaints about a given candidate, it will file a lawsuit and seek a TRO to enjoin further violations of the law.

NEW JERSEY
New Jersey's Division of Consumer Affairs has been directed by the legislature to establish a credit card "do-not-solicit" list containing the names of mentally ill individuals and senior citizens who are not to be solicited for credit cards upon notification by a family member or an agent of that person. The list does incorporate a safe harbor provision similar to that found in the Telephone Consumer Protection Act.

NORTH CAROLINA
North Carolina has obtained a temporary restraining order against a company which placed telemarketing calls to a hospital switchboard. The calls were prerecorded advertisements for satellite television which are illegal under state and federal law.

TEXAS
Texas as settled claims against three telemarketers regarding allegations of violation of Texas "do-not-call" list law.