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

July, 2005

FCC
The FCC published a request for additional comments with regard to preemption of conflicting state laws as applied to interstate calls on June 29, 2005. Comments on the preemption request are therefore due by July 29, 2005. Please contact me if you would like to file comments on this issue.

FEC (Federal Election Commission)
The FEC has recently ruled that a political fundraising call placed by an outside fundraiser was not "fraudulent" based on the fact that the telemarketer identified herself as calling from the political entity. The Supreme Court and most of the regulators recognized that it is well within a business or charity's right to hire experts to conduct fundraising on their behalf, and the use of outside experts does not change the fundamentally protective nature of these fundraising calls.

FTC
The FTC has reported to Congress that it does not think adding "ADV:" to the subject line of advertising emails would materially combat illegal spam or improve consumer privacy. The FTC noted that "it is extremely unlikely that all spammers would comply with the requirement to label email messages they send." The FTC argued that this requirement would only hurt legitimate businesses.

TCPA
A New York court has dismissed a Telephone Consumer Protection Act suit as the federal court has ruled that it did not have jurisdiction of a plaintiff's TCPA claims against a cruise line. This ruling is similar to that of many other courts on this question.

US CONGRESS
The Senate has passed the Junk Fax Prevention Act of 2005 which will now be sent to the President for signature. The FCC's rules requiring a written signature so that unsolicited advertisements can be sent by facsimile has also been delayed until January 2006. Thus, the FCC's rules have been delayed and congressional relief appears likely which will make permanent the exemption for faxes to established customers so long as the fax contains a disclosure of the recipient's ability to opt-out and an 800 number to which that opt-out request can be sent.

ARKANSAS
Arkansas has filed suit against a company which telemarketed to Spanish speaking customers offering a promotional prize package. This suit is seeking injunctive relief against the California company.

COLORADO
Colorado has enacted a law banning knowing commercial telephone solicitations to cellular telephones. The law provides for a penalty in the amount of at least $300 for first offenses and at least $500 for second and subsequent offenses and goes into effect August 10, 2005. Calls to consumers with whom the caller has an existing business relationship are exempt.

Colorado has passed a law which bars including cellular telephone numbers in directories sold by telephone companies for commercial purposes without express consent from the holder of the telephone number. The law also bans commercial telephone solicitation to cellular telephones unless there is a preexisting business relationship between the caller and the subscriber.

MARYLAND
Maryland's Attorney General has sued a local home contractor for alleged violations of the national "do-not-call" list.

MISSOURI
Missouri's Attorney General has settled a claim against a California mortgage company with regard to allegations of violations of Missouri's state "do-not-call" list. The settlement involved a $15,000 fine and 5-year ban on telemarketing to Missouri.

Missouri has also settled alleged violations of Missouri's "do-not-call" list with a satellite television company. This settlement is also $15,000 in penalties.

NEW JERSEY
New Jersey has filed suit against a remodeling company alleging violation of New Jersey's "do-not-call" list, and failure to register in New Jersey as a telemarketer

NEW YORK
New York has settled with a sweepstakes company which called entrants to its sweepstakes with unrelated telemarketing calls. Although the official rules of the sweepstakes said that an entry was an "opt-in," these rules were never seen by the consumer. "Opt-in" campaigns are legal, but you should ensure the opt-in is legitimate and the consumer knows what he or she is opting into.

OHIO
Ohio has sued a credit card marketer for failure to register as a telephone solicitor.

OKLAHOMA
Oklahoma has settled charges against an Arizona telemarketing company alleging that it was not registered in the state and called consumers on Oklahoma's "do-not-call" list.

OREGON
The Oregon Senate is considering a bill which would allow state or federal "do-not-call" lists restrictions in state court. The state has currently brought zero actions under the federal law in federal court, so it does not seem likely that this restriction would have any effect on Oregon's enforcement of the statute.

PENNSYLVANIA
The Pennsylvania Senate is considering a bill which would prohibit any cellular telephone provider from dialing the number of any subscriber without express consent of that subscriber or including those telephone numbers in a directory or selling that information to any third-party without express consent.

VIRGINIA
A Federal court has fined a Virginia company nearly $200,000 for repeated violations of the national "do-not-call" list. The company made 88 telemarketing calls for sale of vacation packages to 66 residents on the national "do-not-call" list.

WISCONSIN
A Wisconsin regulator has issued an opinion letter stating Realtors cannot return calls to consumers who have called an 800 number to listen to information regarding a listed property. Although such an 800 number call clearly is an "inquiry" within the definition of established business relationship, this regulator has said that a return call in such circumstances violates the federal and state "do-not-call" list. We will work to correct this mistake.