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

January, 2005

FCC
A Republican campaign staffer in New England was indicted for allegedly “war dialing” democratic “get out and vote” phone lines in 2002. The indictment alleges that the chairman hired a company in Virginia to make calls to disrupt Democrats’ phone lines.

I recently had a conversation with an FCC enforcement attorney regarding certain provisions of the TCPA. First, she clarified that the provisions of the TCPA banning calls using automated equipment, i.e. predictive dialers, to cellular telephone numbers and public safety numbers applied to all uses of that equipment and were not limited to telemarketing calls. Thus, the restrictions on ported numbers apply to debt collection calls, etc. Second, she clarified that the “express consent” needed to place calls to cell phones need not be in writing. Although the TCPA Regulation has specified that express consent for faxes should be in writing when these changes go into effect in mid 2005, the rule does not specify that express consent for calling cellular telephone numbers be in writing. She did clarify that the burden of proving express consent would be on the caller.

FTC
The FTC is publishing in final form a number of documents required by the Fair Credit Reporting Act, including notices to those persons that furnish information to consumer reporting agencies and duties of users of information obtained from consumer reporting agencies. These documents can be obtained in the Federal Register at the FTC’s website.

Two payment processing companies have been banned from processing charges for companies that conduct outbound telemarketing. The FTC said the defendants knowingly assisted telemarketers who sold deceptive products. This is another example of enforcement of the “accomplice liability” standard of the Telemarketing Sales Rule.

Comments to the FTC regarding delivery of recordings, and the FTC’s abandonment provisions are due with the agency by January 10, 2005. You can make comments at: https://secure.commentworks.com/ftc-tsr.

The requirement that telemarketers “scrub” their list at least every thirty-one days goes into effect January 1, 2005. Previously, entities were required to scrub at least quarterly.

The FTC published an announcement that the “do-not-call” registry accepts personal cell phone and home number registrations. Several internet rumors have circulated regarding whether or not the list applies to cell phone numbers. You should also be aware of restrictions regarding use of predictive dialers placing calls to cellular telephones created by the TCPA. Please contact me if you have questions regarding this matter.

ALASKA
Cynthia Drinkwater, Assistant Attorney General of the State of Alaska, has expressed her opinion that telemarketers calling solely for exempt entities are not required to register as telemarketers in the state. Please contact me if you have questions regarding this matter.

KANSAS
The Kansas Banking Commissioner has interpreted references to “your mortgage loan” to imply an affiliation between the advertiser and the consumer’s existing mortgage. Thus, unless such a relationship exists, his office may consider this type of claim to be deceptive. You should review your scripts and written materials to ensure that you do not imply a relationship with another company if one does not exist or a relationship with a government agency.

MICHIGAN
A bill has been proposed in the Michigan House of Representatives which would allow the Public Service Commission to designate a state “do-not-call” list either administered by the Commission or an agency of the federal government. The bill contains a slightly different definition of “existing customer” allowing calls to consumers who have purchased from an entity within twelve months prior to any telephone call.

MISSOURI
A bill has been proposed in the Missouri House of Representatives which would allow the Missouri “do-not-call” list to accept wireless telephone numbers. Wireless business subscribers would be included on the list which raises a significant question regarding the constitutionality of the list as businesses generally are not considered to have “privacy rights” protected by The Constitution.

A bill has been proposed in the Missouri Senate which will restrict state contracts with telemarketers requiring that those contracts only be with entities operating call centers in the United States. The bill also requires that inbound and outbound call centers disclose upon request city, state and country where the customer service employee is located.

NEW YORK
New York has passed a law which prohibits marketing of credit cards on college campuses except pursuant to an official college credit card marketing policy. The policy may include registration of on-campus credit card marketers, limiting credit card marketers to specific dates and specific areas of campus, and prohibition on gifts and workshops for students regarding good credit management. The act is to take effect on July 1, 2005. Aiming restrictions specifically at one type of speaker is content based regulation of speech. It would be shocking if this statute withstood constitutional challenge.

OHIO
Ohio has filed suit against a Florida company alleging violations of the state “do-not-call” law. The allegations also involved fraud. More often than not, a “do-not-call” list suit is sparked by complaints regarding fraud or other types of deception.

PENNSYLVANIA
Pennsylvania’s privacy law will go into effect February 1, 2005, banning false statements in published customer privacy policies regarding how businesses use personal information they collect. You should review your privacy policy to ensure that your practices both comply with the law and are in line with any published statements regarding your activities.

UTAH
A bill has been filed in Utah which would limit the scope of the state’s no call database to unsolicited ntrastate calls. The FCC may make this bill moot by explicitly preempting state law in the near future.