A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
July, 2008
FEDERAL
FCC
The FCC has rescinded a Citation issued to a sender of prerecorded telephone messages. The Citation, issued
in 2006, alleged violations of the TCPA's bans on unsolicited prerecorded calls. The business provided the
FCC information showing that it did not place the calls in question and the FCC, in 2008, rescinded the
Citation.
The FCC has issued a report regarding the state of the National Do-Not-Call List. More than 145 million
numbers are now on the registry. The number of entities paying for access to the registry has decreased,
however, from 6,824 to 6,242.
A private plaintiff sued the Federal Communications Commission regarding its established business
relationship exemption for fax advertisements. The court of appeals dismissed his claim (Biggerstaff
v. FCC). The plaintiff claimed that the established business relationship exemption contradicted the
express text and legislative history of the TCPA. The court ruled that he could not challenge the 1992
established business relationship exemption because it was outside the scope of the 2006 rulemaking by
the FCC on the same topic.
A private plaintiff has sued a business for allegedly sending twelve unsolicited facsimiles to the
plaintiff encouraging the purchase of discounted prescription drugs. The defendant removed the case to
federal court but the federal court returned the action to state court because the TCPA specifically
provides for causes of action in state court.
The FCC still has not ruled on preemption petitions, with regard to the TCPA, which have been before the
Commission for years. I recently spoke with an FCC attorney regarding this issue and the only information
she could provide me was that the petitions were still pending.
FTC
Pursuant to the Privacy Act of 1974, the FTC has disclosed that among the records it maintains about
individuals are name, e-mail address, and telephone number of consumers on the National Do-Not-Call
List.
The FTC and the California Office of Privacy Protection will host a public workshop in Los Angeles on
Wednesday, August 13, 2008 on how businesses can secure personal information and protect the privacy
of consumers and employees. The workshop is free and open to the public.
The FTC has obtained a court order enjoining the activities of a credit repair company and its owner
who allegedly falsely promised to remove derogatory information within consumers' credit reports.
STATE
California
A California appellate court has ruled that a California criminal ban on disruption of school activities
did not apply to anti-abortion protestors' displays of large photos of aborted fetuses. The court ruled
that the First Amendment bars the government from suppressing speech because of listeners' reaction to it.
Here the disruption caused by the photos was based on teachers' and students' responses to the photos,
rather than the speech itself. This case is relevant to telephone solicitations because regulators often
use the argument that consumers dislike telephone solicitation calls. This "hecklers veto" is not a valid
reason to support suppression of speech.
Illinois
An appeals court in Illinois has affirmed the trial court's summary judgment in favor of a defendant
cruise company which allegedly sent unsolicited fax advertisements to a travel agency. The trial court
ruled that the travel agency had consented to receive the faxes and there was, therefore, no TCPA claim.
The travel agent had been a member of the trade group and had routinely supplied its contact information
to enable entities such as cruise lines to supply information regarding promotions to members of that group.
Kansas
A doctor who sued a company alleging violations of the TCPA has been awarded approximately $10,000 for
attorneys' fees in a putative class action. The defendant removed the case to federal court. After
the case was remanded, the federal court awarded the plaintiff attorneys' fees for the cost of the motion.
Louisiana
A Louisiana court has approved a class action against a long distance company for violations of the TCPA.
The court awarded more than two million dollars to the plaintiffs' attorneys for fees. This suit alleged
that the long distance company sent unsolicited fax advertisements to the plaintiffs.
Mississippi
Mississippi has proposed changes to its "do-not-call" list increasing the fee from $800 to $1,000 and
removing the five year expiration date for consumers' numbers added to the list. The change becomes
effective immediately.
Missouri
Missouri has amended the exemptions to its state telemarketing statute to exclude from the exemption
merchandise sold by an entity under the direction and supervision of the Division of Professional
Registration. The exemption is now limited solely to entities regulated by the Department of Insurance
and the Department of Financial Institutions.
A Missouri court has ruled that a class action against a defendant debt collector could not be certified
because each plaintiff could have solicited the contact from the defendant. Because this question had
to be asked for each plaintiff, a class was not appropriate, the court ruled.
New York
The state of New York has adopted the federal established business relationship exemption including
purchases in the 18 months preceding the call or inquiries in the three months preceding the call.
Previously, New York required a financial transaction for there to be an established business
relationship. These rules went into effect on June 25, 2008.
A New York appellate court ruled that an attorney who sent unsolicited faxes was liable for TCPA
violations. A disclosure on the faxes that they were "not advertisements" was not effective under
the TCPA and the court ruled that the faxes were unsolicited advertisements subjecting the sender
to TCPA liability.
North Carolina
A bill has been proposed in the North Carolina House (HB 738) which would amend the state's law
regarding prerecorded messages to permit health insurance companies to convey information related
to the consumers' healthcare preventive services, medication, or other covered benefits.
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