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

October, 2002

FCC
The FCC has announced its intention to revise its regulations under the TCPA and has requested comments regarding this revision. It appears the FCC may adopt a complementary "do-not-call" list based on the lack of FTC jurisdiction over several entities. The comments to the proposal also ask for comments on the other provisions of the TCPA including delivery of recordings, "do-not-call" policies and how the FCC should regulate each of these topics. Please contact me if you would like to draft comments on the FTC.

CALIFORNIA
The State of California held a workshop on September 26 regarding the call abandonment law. I attended this seminar and I asked questions regarding the application of the law to calls to established customers, debt collection calls, calls by nonprofits as well as specific questions regarding the records required to be kept under the law and any enforcement actions the Public Utilities Commission has initiated. Please contact me if you would like to discuss this matter further.

The California General Assembly is considering a bill which would require that all business email advertising contain a toll free number or valid return email address that the recipient can respond to, to notify the sender not to send any further unsolicited advertisements.

The State of California is also considering a bill which would raise the fee which the state could charge for individuals wishing to sign onto the state "do-not-call" list to $5 every three years from the current charge of a maximum of $1 for every three years.

FLORIDA
The Department of Agriculture and Consumer Services has issued regulations setting forth procedures for registration as a commercial telemarketer under Florida law. The Department will hold a workshop in late September to discuss these regulations.

ILLINOIS
Illinois has filed suit against a telecommunications provider alleging slamming of consumers regarding voice activated email services. In a lawsuit before the Ninth Circuit Court of Appeals, AT&T has argued that the Federal Communications Act preempts state contract and consumer protection laws with regard to its long distance customer service contracts. AT&T lost on this issue at the trial court level.

INDIANA
The Indiana Attorney General has issued proposed rules to define "established business relationship" with regard to its telemarketing laws.

KENTUCKY
The Attorney General's office in the State of Kentucky is becoming increasingly aggressive with regard to telemarketing registration and enforcement of the state "do-not-call" list. As you know, the Kentucky legislature recently revoked almost all exemptions to registration in the state. If you call into Kentucky for any campaign, you should ensure that you are registered or exempt.

MISSOURI
Although the Missouri Attorney General continues to aggressively enforce the state "do-not-call" list law, its latest newsletter did concede that several types of telemarketers were exempt from the list's application. Until now, the "educational materials" promulgated by the Attorney General did not mention exemptions, thus contributing to consumer confusion and increased complaints.

NEW JERSEY
The New Jersey Senate is considering a bill which would establish a "do-not-call" list. The bill would also require telemarketers to disclose their name and the purpose of the call within the first 30 seconds of the call and prohibit calls before 8:00 a.m. or after 9:00 p.m. local time. The bill prohibits unsolicited telemarketing sales calls to any customer more than 45 days after the customer's name and telephone number appear on the no telemarketing call list. A telemarketing sales call includes a voice communication via telephone line to a customer or a voice communication or transmission of text, graphics or images to a commercial mobile service device of a customer made by a telemarketer to encourage the purchase or rental of, or investment in, merchandise.

NORTH CAROLINA
The North Carolina senate has enacted a law which will provide up to $700,000 to the Department of Justice to establish and implement the state "do-not-call" list. The figure shows that the national "do-not-call" list proposed by the FTC will be tremendously more expensive and that these types of laws are not without cost. This issue was also recently addressed in the State of California which estimated that the list would cost $5,000,000 to implement.

PENNSYLVANIA
The State of Pennsylvania has contracted with the Direct Marketing Association to manage its state "do-not-call" list. Thus, your subscription to the DMA Telephone Preference Service should satisfy the obligation to Pennsylvania law.

WISCONSIN
The State of Wisconsin has approved final rules for its "do-not-call" list. The list exempts several types of telephone calls including calls to businesses, customer satisfaction calls and calls made by individuals. Telemarketers are required to register and purchase the list and pay a fee based on the number of telephone lines the business uses. It is somewhat uncertain how this fee structure will be applied to direct connections such as T1's.

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®. October 1, 2002, Copilevitz & Canter, L.L.C.