A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
September/October, 2008
FEDERAL
FCC
The FTC provided testimony to Congress regarding H.R. 1776 which would require call center employees to
disclose, in telephone calls with consumers, the physical location of the call center.
FTC
The FTC has settled its largest credit counseling/debt management case obtaining more than $10,000,000
from Ameridebt and related companies. Approximately 460,000 consumers were involved with these companies,
and the suit shows the FTC's continued aggressiveness with regard to this industry.
The FTC has charged two credit repair marketers with violations of the Telemarketing Sales Rule for collecting
advance payment for credit card services.
Commercial Speech
An appellate court from the Second Circuit has upheld the dismissal of a disgruntled dieter's claim against
a company which offered a diet plan. The Second Circuit confirmed that even commercial speech is afforded
some protection under the First Amendment to the United States Constitution.
Department of Health and Human Services
The Department of Health and Human Services has proposed final rules regulating Medicare Drug Programs. In
those rules, HSS extended its prohibition against door-to-door solicitation for these plans to include other
instances of unsolicited direct contact including outbound telemarketing.
CANADA
On September 30, 2008 the CRTC will implement Canada's National Do-Not-Call list. The CRTC can assess penalties
of up to $15,000 per violation against corporations which violate the list.
STATE
California
A bill has been proposed in the California General Assembly (AB 2059) which would regulate solicitations by
U.S. mail requiring a clear and conspicuous identification of the sender and of the entity seeking permission
to call that consumer recipient by telephone.
Illinois
An Illinois court has denied certification to a class in a TCPA suit alleging unsolicited faxes. The court
ruled that it was not responsible for a fax sent by a third party.
Kentucky
A client has had a discussion with the Kentucky Consumer Protection Division regarding its No-Call enforcement
procedures. That regulator indicated that it would not enforce its No-Call restriction against a company
until it had five complaints in the State of Kentucky. Obviously, this standard could change based on the
seriousness of the complaint involved.
A bill has been filed in the Kentucky House (BR 79) which would bar prerecorded political messages unless first
introduced by a live operator. The bill provides for a private cause of action by consumers who receive illegal
calls.
Maryland
The Supreme Court of Maryland has ruled that a private plaintiff did not have a cause of action against a company
which sent a political prerecorded call to him (Worsham v. Ehrlich). The Plaintiff had argued that the script
did not contain certain disclosures required by the TCPA. The Court ruled that the TCPA provides for a private
cause of action for receipt of illegal phone calls, not in violation of the technical restrictions found in the
FCC's regulations.
Mississippi
Mississippi has changed its regulations on telemarketing and now bars calls on state holidays and restricts how
a telemarketing business which purchases the Mississippi Do-Not-Call list can share that list. If you would
like updated charts on these topics, please contact me.
Missouri
Missouri's Attorney General, who is running for governor, has announced that he intends to prosecute senders of
prerecorded telephone calls which do not comply with applicable state and federal law. The TCPA requires that
all prerecorded calls disclose the name of the caller and a telephone number at which that entity can be reached.
The TCPA also prohibits calls to cell phones using prerecorded messages without express consent.
North Dakota
Please be aware that the North Dakota Attorney General continues to take an aggressive interpretation of the
definition of current business relationship as set forth in North Dakota's law regulating prerecorded calls.
The definition "current business relationship", the office argues, is different from the definition of
"established business relationship" set forth in the same chapter of North Dakota statute.
Pennsylvania
A bill has been introduced to the Pennsylvania Senate (SB 1556) which would add faxes to the definition of
"telephone solicitation call" potentially triggering a registration requirement.
West Virginia
I recently received a class action lawsuit filed in the state of West Virginia by a noted TCPA Plaintiff alleging
receipt of unsolicited prerecorded commercial telephone calls. Previously, class actions have been used with
regard to unsolicited faxes, but not as commonly as with prerecorded messages. Given the new FTC prerecorded
restrictions, you should still be aware that the FCC applies restrictions to prerecorded calls, and the FCC's
rules provide for a private cause of action for receipt of illegal prerecorded telephone calls.
OTHER
Text Messaging
I recently reviewed a settlement in a class action against a major internet company which sends text messages
to cell phone numbers which were no longer held by the intended recipients of the calls. Please contact me if
you would like a summary of laws applicable to text messages, generally allowed only with the express consent
of the recipient.
Regulatory
Info
