January, 2004

FCC
The FCC has issued its first citation for violation of the "do-not-call" list. The FCC is unable to fine non-telecommunications companies unless a citation is issued first. The citation was issued to a mortgage company in California.

AT&T has contested the $780,000 fine assessed against it by the FCC. The allegations concern company-specific "do-not-call" requests. AT&T has defended itself claiming that the calls were isolated or inadvertent.

I have reviewed one of the first "request for information" issued by the FCC with regard to alleged violations of the national "do-not-call" lists. The request was issued to a communications carrier. As you may know, consumers often do not know the exemptions to the national "do-not-call" lists. This request for information is an example of the burden businesses must face to rebut consumer error.

FTC
The FTC continues to gather information with regard to alleged violations of the federal "do-not-call" list. As with almost every regulatory inquiry, consumer complaints are assumed to be valid and the recipient business is required to rebut this assumption. This results in a cost to businesses even if the consumer complaints are in error, such as failing to mention the existence of an established business relationship.

I have recently obtained an opinion letter from the FTC regarding two clarifications of operation of the national "do-not-call" list. The first clarification involved independent agents' access to the list through their affiliated insurance company, while the second involved whether a third-party could use its own SAN to scrub on behalf of a seller (rather than using the seller's SAN). In both cases, the FTC has taken a reasonable approach regarding this interpretation in a welcome change from some earlier opinions. If your company uses numerous independent agents to market, and/or, you market services of another entity and have your own SAN, please contact me to discuss the FTC's opinion. The FTC ruled that an agent of a business, even if independent, could use the "do not call" list obtained by the principle so long as the agent did business in the name of the principle.

It is important to note in light of this ruling that the use of a scrubbing service or lead company providing "scrubbed" leads, does not necessarily satisfy your company's obligation under the "do-not-call" list laws. The FTC and several state regulators still require you to purchase access to their lists, even if you use a third-party scrubbing service.

"CAN-SPAM ACT"
Although a different medium, the recently passed "Can-Spam Act of 2003" is of interest to most direct marketers. Please contact me if you have any questions regarding same.

COLORADO
Colorado has adopted a final regulation regarding its "do-not-call" list establishing procedures for administration of the list. The list will involve a maximum fee of no more than $500 and will decrease based on the size of the company. The regulation authorizes Colorado to appoint an agent to administer the list and to maintain an automated on-line complaint system.

GEORGIA
Georgia has announced that it will rely exclusively on the national "do-not-call" list beginning in 2004. The Georgia Public Service Commission will no longer maintain its own list.

LOUISIANA
Louisiana is becoming more aggressive with regard to enforcement of its "do-not-call" list. The state will often request the entire "call log" of a business when it receives one "do-not-call" complaint. The compliance burden of this process is clear, but the state has not yet been challenged that this is overly burdensome.

NEW JERSEY
The New Jersey Assembly is considering a bill which would amend the state's telemarketing "do-not-call" list law. The bill would prevent the list from being used for mail solicitations and include an exemption for businesses not regularly engaged in telemarketing. The bill would also increase the grace period allowed for telemarketers to implement the list from the current forty-five days period to three months from the date the customer's telephone number is added to the list.

Another New Jersey bill would amend the "do-not-call" list law to require telemarketers to have express written consent from consumers prior to placing calls to persons on the list. Calls to existing customers would still be allowed, even if no written consent exists.

NEW YORK
New York has published its final rule adopting the federal "do-not-call" list and to transfer the data in the state list to the Federal Trade Commission for inclusion in the national list.

PENNSYLVANIA
Pennsylvania has fined Time Life, Inc., $30,000 for alleged violations of the state "do-not-call" list law. The allegations involved calls to 30 consumers offering magazine subscriptions and other media through March 2003.

SOUTH DAKOTA
The South Dakota website to purchase and access the state "do-not-call" list (http://www.sddonotcall.com/) refers to purchase of its "do-not-call" list as a "registration." It is important to remember that most states' "do-not-call" lists are separate requirements from the "telemarketer registration" process. Simply because you purchase a "do-not-call" list does not necessarily mean that you are "registered" in that state.

TENNESSEE
Tennessee has "dumped" the federal list into its state "do-not-call" list. This action creates a constitutional problem as different exemptions apply to the Tennessee list versus the national list. Charities, and other entities exempt from the federal list, may be damaged by the state action.

UTAH
The Utah House is considering a bill which would make minor modifications to Utah's Telephone Fraud Prevention Act. Solicitations of charitable donations involving any premium prize or gift would now be regulated under the telephone fraud law.