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

October, 2004

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
The National Association of Attorneys General has announced its top ten list for consumer complaints in 2003. Car rental topped the list while telemarketing/“do-not-call” issues ranked a distant sixth.

TCPA
A TCPA case has been removed from state court in Pennsylvania to federal court and the court has denied the plaintiff’s motion to remand back to state court based on “diversity” jurisdiction. Until this case, federal courts had uniformly required that TCPA actions by private plaintiffs be brought in state court.

A court in Illinois has remanded a case from federal court to state court because the TCPA reads that these cases are to be filed exclusively in state court.

A Texas court has ruled that the TCPA applies to intrastate facsimile ads. Given the FTC’s jurisdiction over intra and interstate activities, the argument that the TCPA does not apply to interstate calls is not a good one.

ALABAMA
An Alabama appellate court has reinstated a doctor’s claim that he received faxes in violation of the Telephone Consumer Protection Act. The trial court dismissed the suit even though the recipient had not expressly consented to receiving a faxed advertisement. The appellate court reversed the trial court on this issue.

CALIFORNIA
A bill has been proposed to amend California’s Public Utilities Code to prohibit telephone companies from including unlisted or unpublished numbers in lists of residential subscribers it may sell. Mobile telephone companies may only include subscribers’ telephone numbers in such lists if they obtain express consent from the subscriber.

A cable network executive was charged with criminal wiretapping for eavesdropping on conference calls at a former employer. The executive sent information regarding the conference calls to newspapers and other media outlets. Despite the fact that almost every telemarketing business is substantially concerned with compliance with the call monitoring laws, cases like this are extremely rare. This is likely a compliment to the compliance procedures of the vast majority of companies in the industry.

California has passed a law which requires that telemarketers obtain an opt-in disclosure before placing calls or text message to mobile phone numbers. The law also requires that telephone directories obtain express consent from mobile phones prior to listing those telephone numbers. This law is consistent with the federal TCPA Regulations on this topic.

FLORIDA
Florida has issued subpoenas to several entities with regard to bankruptcy of NorVergence. The entities sent demand for payment letters to former customers of NorVergence, some of which concerned services and equipment that was not delivered or did not work.

ILLINOIS
Illinois has filed a suit alleging “slamming” against a Michigan telecommunications company.

INDIANA
The Indiana Public Utilities Commission has adopted a regulation authorizing change of long distance or other telecommunications carrier after a telemarketing solicitation only if the change is expressly confirmed by the consumer. Indiana allows third-party confirmation of the change, thus making Indiana consistent with the FCC’s slanted rules on this topic.

MARYLAND
A Maryland court has ruled that the TCPA does not violate The Constitution by conferring exclusive state court jurisdiction for private causes of action under the law.

MISSOURI
The Missouri Public Service Commission has proposed rules allowing wireless consumers to opt-out of directories of their telephone numbers assembled by telephone companies.

Missouri has settled allegations of violation of the state “do-not-call” list with a sports picking agency. The settlement involves payment of $15,000.

Missouri has obtained a preliminary injunction against a seller of travel alleging that the entity made false promises and used deception to sell travel club memberships.

NEW YORK
New York has settled a suit against AT&T regarding improper billing for long distance telephone services which had not been requested by the consumer.

New York has adopted a law providing for $500,000 in state funding to operate its state “do-not-call” list.

OREGON
Oregon has amended its 2003 settlement with AT&T with regard to allegations of improper billing for long distance services.

TENNESSEE
The Tennessee Regulatory Commission has proposed a rule which would change the length of time a consumer stays on the Tennessee “do-not-call” list. Currently, names are removed after five years on the list requiring the consumer to re-register. The new rule will keep names on the list until the consumer specifically notifies the Commission that he or she needs to be removed.

TEXAS
The Public Utilities Commission has amended its “do-not-call” regulation. The Commission has decided to maintain a separate state “do-not-call” list. The Commission also declined to change its established business relationship from twelve months to eighteen months to make it the same as the federal exemption. Further, the Public Utilities Commission decided that it should be allowed to use consumer affidavits admitted without cross examination in cases to enforce alleged violations of the “do-not-call” list.