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

April, 2005

FCC
President Bush has appointed Kevin J. Martin, a current Commissioner of the FCC, as the head of the FCC. The appointment does not require Senate confirmation because he is already a Commissioner.

IDENTITY THEFT
A new waive of legislation in states allows consumers to put a “security freeze” on a credit history. Merchants are unavailable to review consumers’ credit history which are “frozen.” The effect of these laws on teleservices industry remains to be seen.

INDIANA
A bill has been proposed in Indiana which would prohibit state contracts with businesses which do not comply with Indiana’s “no-call” list, even if the law is preempted by the FCC. The law’s response to the Consumer Bankers Association’s Petition to the FCC to preempt “no-call” laws in Indiana and other states.

IOWA
A bill has been proposed in Iowa which would require certain disclosures for political telephone calls. Calls including “push polls” would be required to disclose the identity of the individual who is calling and the entity with which the individual is affiliated, as well as the individual that paid for the telephone communication. The law would also require disclosure of the name, telephone number and address of an individual who the call recipient can contact for further information.

KENTUCKY
The Kentucky House has passed a resolution urging the Federal Communications Commission to not preempt state “do-not-call” laws.

MARYLAND
A cellular telephone distributor is not liable under the Telephone Consumer Protection Act where the distributor salesman acted outside the scope of his employment when sending unsolicited fax advertisements.

MINNESOTA
A bill has been proposed in the Minnesota Senate which would require that inbound and outbound call centers provide, upon request, the location of the call center, as well as the name of the individual and company and how the consumer can speak to an employee of the company hiring the telemarketing firm.

NEW YORK
A bill has been proposed in New York which would limit the state’s established business relationship exemption from its “do-not-call” list to calls to current customers.

A bill in New York has been proposed which would create an 8:00 AM to 8:00 PM curfew for telephone solicitation calls. The current federal curfew is 8:00 AM to 9:00 PM.

NORTH DAKOTA
A company has settled charges by the State of North Dakota that it violated the state’s prerecorded message statute. As you may know, some state laws regarding prerecorded messages vary from the standard set forth in the TCPA.

OHIO
An Ohio court has ruled that the sender of a prerecorded message did send an unsolicited advertisement and was liable for damages to the recipient. The sender of the fax did not have a “do-not-call” policy at the time it made the call and was not a nonprofit organization.

PENNSYLVANIA
A bill has been proposed in Pennsylvania which would bar wireless telephone companies from providing an personal consumer data to any third-party without written consent.

AT&T has settled a Pennsylvania “do-not-call” complaint for $34,500 in fines and investigative costs. The plaintiff alleged 60 illegal calls to persons on the national “do-not-call” list.

A bill has been proposed in Pennsylvania which would regulate "push-polls" on behalf of a particular political candidate or issue. Telemarketers would be required to disclose the purpose of the call, the name of the telemarketing business, and what issue the telemarketer is advocating.

A bill has been proposed in Pennsylvania which would amend the definition of “telephone solicitation call” to remove the current exemption for calls on behalf of a tax exempt organization. Telemarketers placing calls in this category would now be subject to the law including its registration requirement. The registration requirement, however, does have numerous exemptions.

TEXAS
A bill has been proposed in Texas which would require that inbound and outbound call centers disclose the city, state and country where the representative is located plus the name of the employee and the call center. Call centers outside the United States would be required to transfer the call to a person in the United States upon request.

The Texas House is considering a bill which would allow the state “do-not-call” list to combine its telephone numbers with those Texas numbers on the national “do-not-call” list.

UTAH
Utah has passed a law which requires telephone solicitors to honor company-specific “do-not-call” requests. As you may know, the federal TCPA already contains this provision as does the Telemarketing Sales Rule.

Utah has passed a law which amends the sales-consumer protection law to ban the use of unsolicited checks or negotiable instruments which obligate the consumer to purchase a product or service if cashed. The law exempts depository institutions and affiliates of financial institutions.

WEST VIRGINIA
A bill has been proposed in West Virginia which would require the state to contract only with telemarketing call centers located in the United States.

A bill has been proposed in West Virginia which would create a state "do-not-call" list. The Public Services Commission is authorized to charge consumers a fee to add their name to the list.