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

June, 2005

DMA
The Direct Marketing Association Telemarketing Ethics Committee has issued a series of recommendations for business practices which include proper handling of "do-not-call" requests, proper use of established business relationship, proper use of recorded messages and other items likely to reduce the amount of complaints about telemarketing businesses. It can be reviewed at http://www.the-dma.org/guidelines/telemarketing checkpoints.pdf.

FCC
Thirty-three trade groups, including the DMA, have filed a petition with the Federal Communications Commission asking its rule of states with no authority to regulate interstate telemarketing calls. This is perhaps the most concerted effort yet on the topic of preemption. The FCC has asked for another round of comments on the topic of preemption. Contact me if you would like to request the FCC rule that state law should not vary from the federal rules for interstate calls.

FTC
The FTC has submitted a statement to Canada's Parliament regarding the national "do-not-call" list. The statement notes that compliance with the registry has been high and that the registry contains more than ninety-two million telephone numbers.

TCPA
A Fourth Circuit Court of Appeals decision has ruled that an insurance company did not have a duty to pay for damages in a junk fax class action lawsuit. The Circuits are now split on this matter. Given the catastrophic damages involved in these suits, a Supreme Court decision could resolve this conflict between appellate courts.

CANADA
Canada's House of Commons has proposed an amendment to exempt charities and organizations with established business relationships from the proposed national "do-not-call" registry in Canada.

COLORADO
The Colorado House has passed a statute which allows facsimiles to be sent to persons with whom the caller has an established business relationship. This state law may have little effect with regard to the pending change to the federal TCPA, effective July 1, 2005, if Congress does not take further action, which will require that faxes be sent only with "express consent" even if there is an established business relationship.

A Colorado Appellate Court has ruled that TCPA claims are not assignable. Many attorneys have solicited small businesses for their unsolicited faxes and in turn sued the senders of those faxes. This court has ruled that these plaintiffs (who are not actually faxed but purchased the faxes from a small business by an assignation) are not entitled to damages under the TCPA in Colorado. Plaintiff's lawyers can still charge a percentage of the damages received, however, so this case may result only in a change of form, not substance, of these suits.

The Colorado House has passed a law barring knowing commercial telephone solicitations to cellular telephones. The bill will be sent to the governor for signature. The bill provides for a private cause of action with penalties of at least $300 plus attorney's fees per phone call and at least $500 for a second offense. Federal law bars calls to cellular telephones under most circumstances.

MAINE
Maine has passed a law barring unsolicited facsimile transmissions.

MASSACHUSETTS
A Massachusetts bill would revise the state's telemarketing law to ensure that sales are only made in the language of the recipient of the call and that the recipient of the call is not mentally incapacitated.

A bill has been proposed in the Massachusetts House which would require clear and conspicuous disclosure of a "3 day right to cancel" before the consummation of a telemarketing sale.

MISSISSIPPI
A bill has been introduced in Mississippi to reenact the state's "do-not-call" list which was to expire. No significant changes were made in the new bill.

NEW JERSEY
A proposal has been introduced in New Jersey's General Assembly which requests the FCC to dismiss the Petition for Declaratory Ruling filed by the American Teleservices Association requesting preemption of New Jersey's law with regard to interstate telephone calls.

A bill which would create a "do-not-solicit" list of vulnerable persons, such as elderly or mentally disabled, for credit card solicitation continues to be considered by the New Jersey Legislature. Topic specific lists are rare, but not unheard of in state law.

NEW YORK
New York has settled with Verizon Communications regarding unauthorized "cramming" on consumer telephone bills. The settlement involved a $70,000 payment to the state.

PENNSYLVANIA
The Pennsylvania Attorney General filed suit against a local window and siding company alleging fraud and violation of the state "do-not-call" law.

TEXAS
A Texas bill which would create a state "do-not-call" list has been reported to the House from Committee.

Texas's "do-not-call" list law has been sent to the governor. It would combine the Texas "do-not-call" list with the federal "do-not-call" list. It would continue to charge Texas consumers $3.00 to add their names to the Texas list.

The "do-not-solicit" list for electric utilities would be amended to apply only to nonresidential electric customers. It is extremely unlikely that a "do-not-solicit" list for businesses would be constitutional because businesses are not protected by a constitutional privacy right.