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

October, 2001

ATA CONVENTION
Our firm's Senior Partner, Errol Copilevitz, recently spoke to attendees at the ATA's convention in Las Vegas. The topic of his presentation was state "do-not-call" lists and the potential for challenges to them on First Amendment grounds. Errol will probably soon be writing to you concerning this matter with great importance to all outbound telemarketers. More than a score of states have adopted similar laws, and several states are taking aggressive stances in their enforcement.

FTC
The Federal Trade Commission has issued a broad press release concerning its new privacy agenda which will include a national "do-not-call" list. The press release also states that the FTC will beef-up privacy provisions applicable to telemarketing and commercial email activity.

FLORIDA CONSTITUTIONAL CHALLENGE
Our firm has recently filed a First Amendment constitutional challenge to a Florida law which requires certain nonprofit organizations or their representatives to include a written disclosure of fundraising costs in their written materials. This type of disclosure is "forced speech" and is generally forbidden. Because commercial telemarketers are often faced with "forced speech" requirements, this case is important to most service bureaus and businesses, as well.

IMMEDIATE DISCONNECT/NO REBUTTAL CHART
We have recently completed an update to our charts summarizing state law requirements concerning permission to continue or no rebuttal laws. We have attempted to make the chart more clear by explicitly placing each state into one of the two categories, rather than nearly citing the statute and letting the reader decide which category the state falls into. Please contact me if you would like me to email you a copy of the new chart.

CALIFORNIA
California Assembly Bill 870 has been passed and is awaiting the signature of the Governor. It would impose restrictions on users of predictive dialers requiring that a live telemarketer be available for all calls placed to any number in California. Thus, the law could be enforced so as to prohibit any abandonment rate for calls into the state. The bill's effective date would be July 1, 2002. The bill directs the state Public Utility Commission to pass regulations setting an acceptable abandonment rate.

The California Legislature has passed a law creating a state "do-not-call" list and sent it to the Governor for signature. The list is to be implemented no later than January 1, 2003, and will be administered by the Attorney General. The law exempts several types of calls including calls made by tax-exempt charitable organizations. The law allows the Attorney General or District Attorneys to bring civil actions to enforce the law and assess a penalty of up to $500 per violation.

INDIANA
The Office of the Attorney General has proposed regulations to implement its state's "do-not-call" list.

KANSAS
The Kansas Attorney General has taken the position that Kansas law does not allow any abandonment rate of telephone calls placed using a predictive dialer. Within five seconds of the beginning of any connection, the consumer must either be connected to a live operator or a recorded message, i.e., disconnecting a line is not a legal option. As you may know, Kansas was one of the states which enforced its no rebuttal law several years ago, and it could be that this enforcement action is the beginning of a larger set of actions against all users of predictive dialers. Although enforcement of this section has just begun, most businesses calling into Kansas could be in violation of the law and subject to fines and other penalties. Please contact me at your earliest convenience to discuss compliance with this Kansas law.

KENTUCKY
A bill has been pre-filed in the Kentucky General Assembly which applies the state's telemarketing law to both live and recorded communications. The bill would also amend some of the exemptions to the telemarketing law and add several new exemptions. Finally the bill would add an affirmative defense to actions under the state's "do-not-call" list law if the telemarketer has purchased the list and a call is made as a result of error.

MISSOURI
The Missouri Attorney General continues to threaten large fines and other legal action against alleged violators of the state's "do-not-call" list. Most recently, the Attorney General has attempted to enforce the "do-not-call" list law against a professional fundraiser calling for donations on behalf of a nonprofit organization. Application of these "do-not-call" lists to fully-protected nonprofit speech is highly questionable from a constitutional stand point.

NEW HAMPSHIRE
A bill has been introduced in the New Hampshire House which would restrict telephone solicitations to residential telephone subscribers to weekdays between 9:00 a.m. and 5:00 p.m. While bills like this have been considered in the past in other states, no state has passed a restrictive telephone curfew which would exclude the prime evening hours of calling. We will track the progress of this bill accordingly.

NEW JERSEY
The New Jersey Casino Control Commission has proposed a regulation requiring gambling institutions in the State to maintain a "do-not-call" list of consumers who do not wish to receive gambling related solicitations.

WISCONSIN
The Wisconsin Department of Agriculture Trade and Consumer Protection has begun work on the regulations necessary to implement the State's "do-not-call" list. If you desire input into the regulations, now is the time to submit these comments to the administrative agency.