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

September, 2005

BRITISH COLUMBIA
Effective October 1, 2005, British Columbia will require a telemarketing registration for sellers and professional fundraisers. The rule exempts a charity soliciting donations “in-house.”

FTC
The FTC has settled with Columbia House alleging that it violated the national “do-not-call” registry and specific consumer “do-not-call” requests. The settlement involves a $300,000 penalty.

The FTC has announced that the 100,000,000th number has been added to the national “do-not-call” list.

The Federal Trade Commission continues to aggressively enforce its interpretation of the Telemarketing Sales Rule affecting delivery of recorded messages to consumers. If you send recorded messages to consumers, either on your own or through a third party for any purpose, you should review these calls to ensure compliance both with FCC and FTC rules.

The FTC has rejected a request to require consumers complaining about calls to numbers on the national “do-not-call” list to provide additional information. A long distance company asked the FTC to require consumers to include a description of the goods or services offered to quickly enable the long distance company to determine that it is exempt from the FTC’s jurisdiction on this question. The FTC rejected the long distance company’s request claiming that its online announcements already informed consumers that certain types of calls are exempted from the national “do-not-call” list. The FTC concluded that the current complaint system collects the appropriate amount and type of information from consumers.

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
The Top 10 Consumer Complaints List for 2004 includes telecommunications/slamming/cramming at No. 3 on the list. It has moved up one place since last year.

SECURITIES AND EXCHANGE COMMISSION
The SEC has proposed a rule change regarding telephone solicitation requirements for sellers of securities. The new rules would impose an 8:00 a.m. to 9:00 p.m. curfew without express consent or an established business relationship, require companies to keep Firm specific “do-not-call”lists, and require securities brokers to use the Federal Trade Commission’s national “do-not-call” list. The rules would also contain a disclosure requirement and other rules similar to the current FCC restrictions on telemarketing contained in the “do-not-call” list. Please contact me if you would like to discuss these new FCC regulations which will be published in the Federal Register and become final after a comment period, at least 90 days after publication.

ALABAMA
An Alabama appellate court has overturned a defense decision dismissing certain TCPA claims based on unsolicited facsimiles. The trial court had held that the plaintiff did not prove that the defendant knowingly made the facsimile transmission. The Appellate Court held that the “knowing” provision of the TCPA dealt only with enhanced penalties and that the plaintiff, therefore, was not required to prove a knowing violation for his TCPA suit to be heard by the Trial Court.

COLORADO
A Colorado appellate court has reversed the trial court which had dismissed a TCPA action because the state of Colorado had not specifically authorized TCPA suits in State Court. Most cases have held that a state must “opt out” of TCPA suits rather than “opt in” to allowing them.

ILLINOIS
An Illinois Court has ruled that a TCPA claim was under a business’s insurance policy as the facsimiles could have been sent illegally through negligence rather than knowing action. Cases are split regarding whether insurance applies to damages under TCPA claims.

IOWA
Iowa and two other states have signed an agreement with a South Dakota bank designed to prevent fraudulent telemarketers from gaining access to consumers’ bank accounts.

MINNESOTA
Minnesota has reached a settlement with a debt collector after it alleged the debt collector made false representations regarding consumer debt and continued to place phone calls to consumers after learning that the consumers did not owe the debt in question.

Missouri
Missouri has raised the price of its state “do-not-call” list from $25 per quarter for each area code to $50 per quarter for each area code. The price increase is effective September 14, 2005.

Missouri’s Attorney General has announced that the cable television provider will pay $75,000 to the State of Missouri to settle allegations of violation of the state “do-not-call” list law. This settlement called for a penalty of $1,000 per alleged violation.

OREGON
The Oregon Legislature has passed an amendment to its telephone harassment statute which bars sending a text message, voicemail, or any other message to any telephone after the person has given notice that he or she does not want to receive those messages.

TEXAS
A Texas Court has rejected a TCPA suit based on a two year statute of limitations under state law. Despite the fact that federal law allows a four year statute of limitations, the Court held that state law applies.

UTAH
A TCPA suit filed against a non-profit organization has been dismissed by a Utah trial court. As you may know, the TCPA allows prerecorded calls by or on behalf of charitable organizations. The trial judge recognized this exemption and dismissed the plaintiff’s suit.

WISCONSIN
Wisconsin has filed suit against a Florida based seller of travel alleging that it failed to register as a telemarketer, called Wisconsin residents on the new “do-not-call” list, used electronically prerecorded messages and caller ID blocking and failed to make required disclosures.