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

February, 2005

FCC
FCC Chairman Powell has resigned from his chairmanship of the Federal Communications Commission. This likely with have little effect on FCC enforcement or interpretation of the Telephone Consumer Protection Act.

CANADA
Canadian health officials are drafting a proposal to prevent internet pharmacies from selling mail order prescription drugs to United States customers. As of now, I would advise against any telemarketing campaign on behalf of Canadian drug providers as the FDA's opinion is these sales are illegal, and you could be held liable under the accomplice liability standard for illegal sales.

ALASKA
Alaska is considering a bill which would modify the state's telemarketing law to ban recorded telephone calls for political purposes to Alaska consumers whose names are on the state or federal "do-not-call" lists. It is highly doubtful, given the subject matter of the banned calls, that this will pass the legislature. It is even more doubtful that the law would be constitutional if passed. The bill has been sent to a House Committee.

ARIZONA
The State of Arizona has settled with a leasing company with regard to telecommunications fraud involving NorVergence, Inc.

CONNECTICUT
A bill has been proposed in Connecticut which will require telemarketers to disclose, upon request, the name of the person on whose behalf the call is being made and the name, business address and telephone number of the supervisor in charge of such paid caller.

Another bill has been proposed in Connecticut which would extend the "do-not-call" list to political phone calls.

GEORGIA
A bill has been proposed in Georgia which would create a felony for persons who send more that 10,000 false or misleading messages in one day via email. The bill also outlines the misdemeanor charges for lesser violations.

INDIANA
A bill has been proposed in the Indiana House which would prohibit political calls to persons on the Indiana "do-not-call" list.

An Indiana bill has been proposed which would allow the inclusion of mobile telephone numbers on the state "do-not-call" list.

IOWA
A bill has been proposed in the Iowa Senate which would create a state "do-not-call" list. The list would exempt calls to consumers with whom the caller has an established business relationship and calls by or on behalf of a tax exempt organization if a bonafide member of the organization makes the call.

MISSISSIPPI
A bill has been proposed in the Mississippi House which would add facsimile numbers to the Mississippi "do-not-call" list. Unsolicited facsimiles are already illegal under the federal Telephone Consumer Protection Act and sending them can subject any business to potentially huge liability under federal law.

The Mississippi House is considering a bill which would require prompt disclosure of the geographical location from which the call is placed for all telemarketing calls.

MISSOURI
Missouri's Attorney General has issued a Top 10 list for consumer complaints. Cramming and slamming top the list of consumer complaints followed by home repair, travel and timeshare complaints, and unsolicited faxes.

Missouri is considering a bill which would amend its definition of "telephone solicitation" to include facsimiles and text messaging within its restrictions thus applying the state "do-not-call" list to those types of calls.

I spoke with a member of the Missouri House of Representatives who told me that the bill proposed by Missouri's Attorney General to eliminate exemptions of state "do-not-call" lists has little chance of passing.

NEW YORK
New York's Attorney General has settled with a group of five leasing companies with regard to telecommunications fraud and the telephone equipment originally sold by NorVergence, Inc.

A regulation has been proposed in New York which would raise the penalty amount on the "do-not-call" list to $11,000 per violation from $5,000 per violation.

NORTH DAKOTA
North Dakota is considering a bill which would require oral disclosures for any business telemarketing discount medical plans. The disclosure include that the plan is not an insurance policy, that the plan includes discounts for medical services, name, address and telephone number of the organization, and the cancellation and refund rights provided by state law.

PENNSYLVANIA
Pennsylvania's Attorney General has filed suit against a home security company for allegedly violating state "do-not-call" list laws and the state's telemarketer registration law. The latter charge likely will not proceed as Pennsylvania's telemarketing registration law exempts persons who do not complete a sale until a later face-to-face meeting (e.g. installation of home security systems).

RHODE ISLAND
Rhode Island is considering a bill which would create a state "do-not-call" list effective January 1, 2006.

TEXAS
Texas is considering a bill which would add Texas telephone numbers included on the national "do-not-call" list to its state "do-not-call" list.

UTAH
The Utah House is considering a bill which would limit application of the state's "do-not-call" list to intrastate telemarketing calls. The FCC may soon take the same action.