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

March, 2005

FCC
The FCC has issued an Order considering several requests to modify the Telephone Consumer Protection Act. On the whole, the FCC rejected both consumers’ attempts to make the regulations’ restrictions harsher, and businesses’ request to add exemptions to the TCPA. The FCC’s Order did not consider preemption, i.e. whether contrary state law can apply to interstate telephone calls.

FTC
I recently reviewed an FTC letter to the government accountability office which noted that there had been a relatively small number of complaints with regard to compliance with the "do-not-call" registry. To date, ten law enforcement actions have been filed in federal district court by the Department of Justice on behalf of the FTC or by the FTC itself. The letter also states that "the Commission continues to work with [eight states which have their own "do-not-call" lists] to coordinate the registries and relevant laws with the DNC registry."

The FTC has announced settlements with timeshare sellers and their telemarketers regarding alleged violations of the national "do-not-call" list. The settlement involves a payment of more than $500,000 and also alleged that the telemarketers unlawfully abandoned telephone calls. The telemarketing company did not pay for access to all area codes it called, as well.

ARIZONA
A bill has been proposed which would require consumer services call centers to disclose the physical location of the call center for inbound telephone calls.

CONNECTICUT
A bill has been proposed in Connecticut which would require call center employees to promptly disclose the location of their call center and a telephone number of the entity hiring the inbound or outbound call center.

GEORGIA
A bill has been proposed in the Georgia Senate which would prohibit wireless telephone companies from including their customers’ telephone numbers in directories without express written consent.

ILLINOIS
A bill has been proposed in Illinois which would require customer service call centers to disclose, upon request, the location of the call center.

INDIANA
The Indiana Attorney General has joined Wisconsin in encouraging consumers to file comments with the FCC against preemption of the state "do-not-call" list. Given that consumers and Indiana’s Attorney General can enforce the federal "do-not-call" list, I can see no legitimate reason why the Attorney General would oppose preemption other than to perpetuate the varying and confusing system currently in place.

A bill has been proposed which would require customer service employees to disclose the city and state where they are located.

MAINE
The State of Maine has sued a New York debt collector alleging that a New York law firm was engaged in illegal activity while attempting to collect debts from Maine residents and failed to comply with the previous order to stop that collection in Maine. The state alleges telephone calls were made which included threats to have debtors arrested and property seized.

MARYLAND
A Maryland court has issued a ruling that a seller of alarm services was not subject to a TCPA action for the actions of its independent contractors. The court ruled that the independent agents were not subject to control by the alarm company with regard to compliance with the TCPA and that they were independent contractors responsible for repeat calls to persons on their own "do-not-call" lists.

This case is contrary to another case in Maryland involving an insurance company and its independent agents.

MINNESOTA
Minnesota has stopped publishing its state "do-not-call" list. All businesses which registered for the Minnesota "do-not-call" list are no longer required to renew that registration, and must solely comply with the federal "do-not-call" list for calls into Minnesota.

NEW YORK
A bill has been proposed in the New York General Assembly which prohibits using false Caller ID information.

Another bill has been proposed in the New York General Assembly which would establish a statewide "do-not-mail/email" registry related to direct marketing solicitations applicable to residential subscribers, only.

A bill has been proposed in the New York General Assembly which would add facsimile numbers to the state "do-not-call" list. As unsolicited faxes are prohibited by federal law, this bill likely would have little effect.

A bill has been proposed in the New York General Assembly which would narrow the definition of "established customer" for purposes of exemption from the state "do-not-call" list. The exemption now would be limited to calls relating to the existing contract, renewal of an existing contract or payment of a debt pursuant to an existing contract and would not allow other types of sales to established customers if those customers were on the state "do-not-call" list.

A bill has been proposed which would add political telemarketing to those calls subject to the restrictions of the state "do-not-call" list.

OREGON
A bill has been proposed in the Oregon House which would designate the federal "do-not-call" list as the state "do-not-call" registry.

PENNSYLVANIA
A bill has been proposed in the Pennsylvania House which would regulate persuasive political polls. The bill would ban willfully false or fraudulent statements or questions in those polls.