April, 2002

AMAZON.COM
Attorney's General from ten states have reached settlement with Amazon.com regarding the personal information collected from more than one million former customers of Egghead.com. Amazon.com has agreed to destroy this personal information or place it under control of a third party. List issues will be of increasing importance at the state and federal regulatory level.

FEDERAL TRADE COMMISSION
The Federal Trade Commission (FTC) has extended the period for comments on the new Telemarketing Sales Rule provisions. Comments will now be accepted until April 15, 2002. Please contact me if you would like to discuss same. Some forces are building for the argument that the FTC's proposed revisions are unconstitutional for several reasons. If passed in the current form, a challenge on unconstitutional grounds to this rule is virtually certain.

INDIANA CIVIL RIGHTS
Our facial challenge to the Indiana "do-not-call" list law will be filed again within the next week. This time, four nonprofit organizations are plaintiffs challenging the constitutionality of the "do-not-call" list law.

ARIZONA
The Arizona Senate is considering a bill which would amend its telemarketer registration law to establish a state "do-not-call" list and make other minor changes. The bill would exempt calls to consumers with whom the solicitor has an established business relationship and calls by or on behalf of charitable organizations.

IDAHO
The State of Idaho has increased enforcement of its "do-not-call" law and has obtained settlements against more than a dozen telemarketing companies. Idaho has reached a settlement with a sender of unsolicited faxes involving injunctive relief as well as a penalty payment.

IOWA
The Iowa House is considering a bill which would require that telephone solicitors identify the first and last name and the business on whose behalf the call is being made at the beginning of the conversation and, upon request, the name of the telephone solicitation business and the telephone number of that service bureau. The bill would also create a registration requirement and a three day right of cancellation.

KANSAS
The Kansas "do-not-call" list continues to make its way through the Kansas legislature. The law allows consumers to register for the list for a period of five years and directs the state to use a vendor such as the Direct Marketing Association to administer the list.

KENTUCKY
Beginning in July, Kentucky's new "do-not-call" list and registration law will be in effect. You should review your registration status in this state as the bill eliminated most of the standard telemarketing exemptions.

LOUISIANA
The Louisiana "do-not-call" list law is now in force. As you know, one of the most onerous provisions about the law is its requirement of a $25,000 bond for payment of future penalties. In our opinion, this prepayment of penalties is unconstitutional.

MAINE
The State of Maine has one of the most onerous telemarketing registration laws involving substantial per telemarketer fees. The law, however, exempts any entity with a location in the state thus creating substantial constitutional questions regarding discrimination against interstate commerce. Please contact me if you would like to discuss Maine's registration statute and the effects of last year's amendment to that law.

MARYLAND
The Maryland House is considering a bill which would prohibit any public institution of higher education from disclosing personal-identifiable information including name, address or telephone number of any current undergraduate student to any entity for commercial use without prior written consent.

MISSOURI
A Missouri Federal Judge has found that the Telephone Consumer Protection Act (TCPA) does not meet the restrictions placed on Government by the First Amendment because it was not justified by proof that the law meets the standards applicable to laws regulating speech. This case was limited to the ban on facsimile transmissions using unsolicited advertisements. However, the logic is applicable to most of the TCPA.

Other courts have considered this same issue in the past but have not demanded that the government prove that the statute meets the restrictions on the First Amendment. In the First Amendment context, this burden is properly placed on the government, so this case is an important precedent. Please call me to discuss.

OKLAHOMA
The Oklahoma Senate is considering a bill which would create a state "do-not-call" list administered by the Attorney General. The bill does not set forth exemptions except for calls placed to consumers with whom the telemarketer has an established business relationship.

PENNSYLVANIA
The State of Pennsylvania has enacted a "do-not-call" list law. The law directs the state to use a nonprofit organization to administer the list and provides for an affirmative defense for good faith errors and implementation. The law also provides for a private cause of action if a person suffers "any ascertainable loss of money or property, real or personal. "

The authors make every attempt to provide current, accurate information, but Telemarketing ConnectionS® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing ConnectionS®. April 1, 2002, Copilevitz & Canter, L.L.C.