A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
June, 2007
FEDERAL
FTC
The FTC has won a summary judgment against an individual and a telemarketer in a suit which alleged
that the defendants engaged in false and misleading telemarketing practices in violation of the
Telemarketing Sales Rule. The court ruled that the individual had authority to control the telemarketers
and was therefore personally liable for violations of the FTC Act.
TCPA
A California court has ruled that a TCPA defendant, who allegedly sent unsolicited faxes, could be liable
under California's "SLAPP" statute for claiming the plaintiff manufactured evidence. The court ruled that
the TCPA plaintiff was entitled to attorney's fees and that the sender of the faxes had no evidence that
he manufactured evidence to create false TCPA claims.
A Louisiana appeal court has ruled that the recipient of unsolicited faxes could file a class action
against the sender of those faxes under state and federal law. There have been decisions on both sides
of this issue, but generally class actions have been allowed in other states for recipients of unsolicited
faxes.
A Texas appeal court, however, ruled that the recipients of unsolicited faxes could not certify a class
action against the sender because some faxes were sent to established customers of the sender and persons
who requested to be added to the fax database.
An Ohio appeal court has granted summary judgment to some defendants in an unsolicited fax case. The
defendant provided toll free telephone numbers which were listed on the faxes but did not send the
advertisements themselves. At most, the court held that the defendant removed names and numbers from a
fax list from the sender, but did not send the faxes themselves.
A Missouri appellate court has ruled that a judge could not force a corporation to disclose all fax
advertisement documents as these disclosures were not related to faxes received by the particular plaintiff.
STATE
Colorado
Colorado has enacted a law specifically applying the Telemarketing Sales Rule to the activities of state
regulated mortgage brokers (HB 1322). Violations of the Telemarketing Sales Rule by mortgage brokers will
now also be violations of state law. The FTC also would apply the TSR to mortgage brokers or their agents.
Florida
The Florida House is considering a bill (HB 13) which would require that political telephone calls disclose
at the beginning of the call that the caller is paid on behalf of the name of the person or organization
authorizing the call. The bill would also modify existing state telemarketing law to ban political telephone
calls to persons on the state "do-not-call" list. Most state "do-not-call" lists, and the federal list, do
not apply to political calls, so if enacted, this bill would be a major change.
Illinois
The Illinois Senate is considering a bill (SB 380) which would bar use of any caller ID information other
than the legal or business name of the caller and the caller's telephone number. Use of false caller ID
information is a violation of federal law.
Kentucky
As of June 26, 2007, Kentucky will no longer operate its state "do-not-call" list and has designated the
federal "do-not-call" list as its "state" list. Please contact me if you would like a list of the states
which still maintain their own "do-not-call" lists.
Maine
The Maine Senate is considering a bill (SB 655) which would create a state law adopting the federal
"do-not-call" list. The Maine Attorney General would be able to sue for violations and penalties of up
to $10,000 for the first violation as well as attorney's fees.
Maryland
A Maryland court has ruled that an insurance company had a duty to defend a seller which marketed debt
management plans to consumers. The class action accused the credit counselor of violating the
Telemarketing Sales Rule by engaging in deceptive and abusive telemarketing acts. Individuals can
enforce the Telemarketing Sales Rule if damages exceed $25,000, although such suits are rare. Generally,
the Telemarketing Sales Rule is enforced by the FTC even though states and individuals can enforce its
terms under certain circumstances.
New Jersey
New Jersey General Assembly is considering a bill (AB 4088) which would regulate customer service issues
with regard to wireless telephone services. A state board would monitor dropped calls, blocked calls,
coverage gaps, and street level signal strength. The bill would also require that service providers
disclose potential telemarketing to subscribers' wireless telephone numbers.
New York
New York has modified its "do-not-call" list law (SB 3543) changing the time period in which a number
becomes effective on the national "do-not-call" list under state law from three months to 31 days.
This change makes state law consistent with federal law.
Oregon
Oregon has passed a law (SB 117) which amends the state's telemarketing statute to remove its
limitations to residential telephone customers. The state law adopts the national "do-not-call"
list, thus, potentially applying the national "do-not-call" list to calls to businesses, despite
the fact that the federal law is limited to calls to consumers. The Act is to take immediate effect
as of June 20, 2007.
Pennsylvania
The Pennsylvania House is considering a bill (HB 1195) which would regulate prerecorded political
messages in the state's telemarketing law. Registration, "do-not-call", and other behavioral rules
could then apply to these calls. Although many states considered similar bills in this legislative
session, most did not pass them.
The Pennsylvania House is considering another bill (HB 1483) which would modify existing consumer
protection laws to require that magazine subscription offers (including those for charitable purposes)
disclose the terms of the subscription, including a statement regarding whether the subscription will
be automatically renewed, the extent of any approval, the deadline for returning any rejection form,
and how the subscriber can cancel the subscription before the expiration date.
Texas
Texas has enacted a law (HB 143) applying the Texas "do-not-call" list to text messages and calls
to mobile telephone numbers. The Act is to take effect September 1, 2007. CAN-SPAM is the federal
law which generally prohibits unsolicited text messages.
Regulatory
Info
