A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
January, 2007
FEDERAL
FCC
The FCC continues to file forfeiture orders with regard to alleged violations of the faxing provisions
of the Telephone Consumer Protection Act. If you are a company which is not normally regulated by the
FCC you can not be fined by the FCC until an official citation has been issued. Once a citation has
been issued, the FCC can fine you with no further notice for future violations.
The FCC has released its quarterly report regarding top subject areas for inquiries and complaints
received by the Commission during the third quarter of 2006. Slamming and TCPA complaints constituted
the largest portion of wireline based complaints. Included in the TCPA category were complaints
regarding artificial prerecorded messages, failure to honor the national "do-not-call" list, unsolicited
faxes, and curfew violations. Given that nearly half of wireline complaints involved TCPA issues, you
can expect the FCC to continue to be active with regard to enforcement of the TCPA regulations.
The FCC has also issued its annual report on unsolicited facsimile advertisements pursuant to the Junk
Fax Prevention Act of 2005. From July 9, 2005 through July 9, 2006, the Commission received 47,000 junk
fax complaints and issued citations in 125 cases. Interestingly, 59% of potentially actionable violations
received citations, so a few faxers were the source of most of the complaints. A full list of entities
cited for unsolicited faxes can be found in the FCC's report located at
http://www.fcc.gov/eb/Orders/2007/DA-07-16A1.html.
The FCC also issued forfeiture notices totaling more
than $900,000.
FTC
The FTC has settled a case involving "do-not-call" violations by a mortgage company. The settlement
included a penalty of more than $400,000 and a permanent injunction against further violations.
The FTC will hold a workshop on January 25, 2007 in Washington, D.C. to analyze the marketing of goods
and services through offers with negative option features. Negative options present an opportunity to
consent in advance to receive products or services in the future. The consumer's silence to take
affirmative action to reject goods or services is acceptance of the offer of goods or services.
More information about the workshop can be found at www.ftc.gov/bcp/workshops/negativeoption.
The FTC has filed a complaint against a nationwide debt collection business alleging violation of
federal law including the Telemarketing Sales Rule. The complaint alleges the defendants falsely
claimed they were a nonprofit entity, misrepresented the amount of their fees and savings to the
consumer, and misrepresented that their services would improve the consumer's credit rating. The
complaint also alleged that the defendants used computerized telemarketing services delivering
recorded messages. As you know, the FCC has taken an aggressive stance with regard to prerecorded
messages and argued that the Telemarketing Sales Rule imposes additional restrictions on prerecorded
calls beyond those found in the TCPA. If you place prerecorded telephone calls with other entities
or on your own behalf, you should immediately examine the legality of those calls.
National "Do-Not-Call" Lists
The National Republican Congressional Committee agreed to stop sending prerecorded messages to
residents whose names are included on the federal "do-not-call" list.
STATE
Arkansas
Arkansas' attorney general has sued two companies alleging violation of the national "do-not-call"
list with regard to offers to sell resort timeshares.
Connecticut
The Connecticut House is considering a bill (HB 5374) which would bar prerecorded messages without
express consent.
Florida
The Florida Senate is considering a bill (SB 554) which would add politically oriented political
calls to the calls covered by the State of Florida's no sales solicitation list. Florida has been
very active in enforcement of its state "do-not-call" list, and this bill, if passed, would take
effect July 1, 2007. As you may know, application of "do-not-call" list political calls is a
constitutional issue as well as a political one.
Georgia
The Georgia House is considering a bill (HB 22) which would change the state's law regarding
prerecorded messages to allow calls by a nonprofit organization unless the recipient has
specifically objected to such calls by making a "do-not-call" request. The bill would also
add solicitation of votes using prerecorded messages to the banned types of calls under state law.
Missouri
Multiple individuals involved in a telemarketing program for advanced fee credit cards have been
sentenced to jail after a trial finding them guilty of fraud and other crimes. Sentences range
from four years to 11+ years. The investigation by the FBI involved undercover telemarketing
representatives as well as a raid on the telemarketers' phone rooms in multiple states.
A bill is being considered in the Missouri General Assembly (SB 251) which would add political
calls to those regulated by the state "do-not-call" lists and bar automated political calls
without express consent. The bill would also impose a curfew on such calls outside the hours
of 7:00 a.m. to 9:00 p.m.
New York
The New York Senate is considering a bill (SB 730) which would include fax numbers on the state's
"do-not-call" list. Unsolicited faxes are already prohibited by federal law, so this state law would
have little effect on your current compliance measures.
Oregon
The Oregon Senate is considering a bill (SB 117) which would authorize the attorney general to
enforce the federal "do-not-call" list and designate the federal "do-not-call" list in lieu of a
separate state registry.
Rhode Island
The Rhode Island Senate is considering a bill (SB 21) which would regulate political solicitations
by telephone by creating a state "no political call" list and require disclosures within the first
30 seconds of political telephone calls. The bill would also impose a 9:00 a.m. to 9:00 p.m. curfew.
South Dakota
The South Dakota Senate is considering a bill (SB 23) which would define the term "unsolicited
telephone call" and eliminate an exemption for calls attempting to set an appointment for a later
face to face meeting.
Texas
The Texas House is considering a bill (HB 515) which would add prerecorded political calls to
the state's "do-not-call" law. The Act would take effect September 1, 2007.
Home
| Site
Map
| Contact
