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

May, 2005

FCC
I spoke with an FCC attorney regarding the various preemption petitions before the Commission. She noted that she thought "every" argument had been made to the Commission both in favor and against preemption, but that she had no idea regarding the timetable for FCC action. Given this inaction, I do not think it can hurt to file additional preemption petitions to show the Commission that this is an important and pressing matter for the industry.

FTC
The Federal Trade Commission has approved another fee hike in the national "do-not-call" registry. The proposed new fee structure will charge $56 per area code of data with a maximum annual fee of $15,400. The first five (5) area codes of data will be available with no charge. This new fee schedule is proposed to go into effect September 1, 2005.

US CONGRESS
A bill has been proposed in the United States Senate which would extend a prohibition on internet-only taxes which is currently due to expire in 2007. This bill would bar taxes on internet access, duplicate taxation by two or more states on purchase of a product or service, and taxes that treat internet purchases differently from other types of sales. The bill does not address imposition of sales tax on internet sales other than as set forth above.

The Junk Fax Prevention Act of 2005, which would allow faxes to be sent if the sender has an established business relationship with the recipient and facsimiles contain certain opt-out information, has been introduced to the United States Senate and deferred to the Committee on Commerce Signs and Transportation. Because the new fax rule will go into effect on July 1, 2005, Congress hopefully will take action soon on this matter.

MISSOURI
A federal court has upheld judgment against an insurance company holding that it was liable to defend a business with regard to allegations that the business violated the TCPA by sending unsolicited faxes.

Missouri has proposed an amendment to fees for its "do-not-call" list from $25 per quarter for each area code to $50 per quarter for each area code accessed. Comments are due by May 15, 2005.

MONTANA
A bill has been proposed in the Montana House which would provide for attorney’s fees for successful suits under the state’s telemarketing consumer protection law.

NEW JERSEY
Acting Governor Richard J. Codey of New Jersey signed Senate Bill 494 into law which restricts state contracts being assigned to entities using foreign workers. While showing hostility to "out sourcing," this bill is not a restriction on how private entities contract for services and applies only to the State of New Jersey. It also has exemptions if services are unable to be obtained in the United States.

NEW YORK
A New York Senate bill would propose a 3% limit on abandonment for calls using a predictive dialer. This is the same as the federal standard.

A New York Senate bill would include the facsimile transmissions in the "do-not-call" registry. Unsolicited faxes are forbidden by federal law.

New York has passed an appropriations bill allocating $425,000 for enforcement of the New York "do-not-call" list.

NORTH DAKOTA
A North Dakota state court has found that a company which sent prerecorded messages to North Dakota violated North Dakota law and that federal law did not preempt North Dakota’s law regulating delivery of recordings or the state’s "do-not-call" statute.

OREGON
A bill in the Oregon House would create new disclosure requirements including identifying the customer service employee and the name of the employer of the customer service employee, the purpose of the call and a description of the goods or services offered in the first 60 seconds of the call. The bill would also require disclosure of the city, state and country in which the telemarketer is located and the name and telephone number of the person who contracted with that call center upon request.

PENNSYLVANIA
Pennsylvania has settled allegations with AT&T that it violated Pennsylvania’s "do-not-call" law. The settlement requires $35,000 in fines.

Pennsylvania’s Attorney General has filed suit against a Florida based travel company alleging that the company ignored cease and desist notices and violated Pennsylvania’s "do-not-call" law.

TEXAS
A Texas House bill would prohibit inclusion of any mobile telephone number in a directory without the express consent of the holder of that telephone number.

A Texas Senate bill would require any telephone call supporting or opposing a candidate to identify the person sponsoring the call by stating, "Paid for by ______" and require that anyone placing a call on behalf of a given candidate obtain consent from the candidate being supported.

VERMONT
Vermont has adopted a law which requires that telemarketers drafting consumers’ depository accounts either have written consent or express oral authorization to make the debit. The telemarketer is required to clearly state that the consumer is authorizing the transfer, the consumer’s name, the date which the amount will be debited, the amount of the transfer and a telephone number for consumer inquiries answered during normal business hours. The authorization is required to be tape recorded and maintained for at least 2 years or the telemarketer is required to provide a written notice to the consumer prior to the debit date.

WASHINGTON
Washington House bill would prohibit inclusion of any wireless telephone number in the directory or database without obtaining express opt-in consent from the subscriber.