A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
January, 2009
FEDERAL
FCC
The FCC has issued a Notice of Apparent Liability for Forfeiture (NAL) against Clean Credit, Inc. for allegedly
willfully violating the TCPA with regard to unsolicited facsimile advertisements. The Commission assessed forfeiture
in the amount of $126,000 for 28 unsolicited fax advertisements sent after the company had been cited for TCPA
violations.
The FCC has issued another NAL against Rentex for sending one unsolicited advertisement after being cited for TCPA
violations. This forfeiture was in the amount of $4,500.
FTC
A credit repair company has settled charges by the FTC that it violated federal law by making false claims when
marketing its credit repair services. The company was fined $210,000 which was suspended based on inability to pay.
The FTC "Red Flag Rules" will be enforced beginning May 1, 2009. The Rules apply to any business which uses consumer
credit reports. Creditors are required to implement an identity theft prevention program approved by the company's
Board of Directors.
The FTC has settled claims alleging a mortgage "rescue" company falsely represented numerous material facts regarding
its services. Under the settlement, the defendants are barred from falsely representing the likelihood that foreclosure
can or will be stopped, as well as the degree of past success of such efforts. The settlement also involved a judgment
of more than $1,000,000, almost all of which was suspended based on inability to pay.
A Florida-based telemarketing company has agreed to pay a total of more than $16,000,000 to settle FTC charges that it
violated the Telemarketing Sales Rule offering deceptive negative option telemarketing programs. The FTC received more
than 5,000 complaints from consumers regarding Suntasia. Wachovia Bank, which allegedly processed thousands of
unauthorized demand drafts on behalf of the telemarketer agreed to pay an additional $33,000,000.
The FTC has charged a mortgage broker with violating the FTC Act for disposing of consumers' personal financial records
in a trash dumpster. Included in the trash were consumer credit reports which are governed by certain specific disposal
rules. The FTC also alleged that the defendant falsely claimed to have implemented reasonable and appropriate measures
to protect sensitive consumer information and the improper disposal violated that claim. Generally, the FTC does not
have specific rules for treatment of sensitive consumer information (there are exceptions for some types of information,
e.g. credit reports), but will use its general power to prohibit unfair trade practices to punish entities which fail
to safeguard that information from breach. State law can be much more specific.
STATE
Louisiana
The Louisiana Public Service Commission continues to refer to purchase and implementation of its state Do-Not-Call
list as a "registration". You should be aware that if you make calls into a given state, that state's Do-Not-Call
list can apply to you as well as a different "registration" or license process. Some states confusingly refer to
implementation of their state Do-Not-Call list as a "registration". Louisiana actually has a separate telemarketing
registration statute (LARS § 45:821, et seq.). Before you call into a state you should ensure that both state
Do-Not-Call requirements and licensure or registration requirements are met (in addition to applicable federal laws).
Brenda Headley, director of the Louisiana No-Call Program, recently advised me that entities related by common
ownership would be required to separately purchase copies of the Louisiana Do-Not-Call List if they had separate
federal tax identification numbers. One entity of the corporate family may be able to register as a principal
solicitor with the other corporate entities registering as "dependant solicitors" if they met the definitions of
those terms set forth in the Public Service Commission's Order.
Indiana
A bill has been proposed in the Indiana House (HB 1192) which would amend Indiana's Do-Not-Call list law to
allow business telephone numbers to be added to the list. Because the constitutionality of Do-Not-Call lists
was upheld based on protection of personal privacy rights, and because businesses do not have such rights, this
amendment would likely be unconstitutional.
Iowa
A bill has been proposed in the Iowa House (HB 15) which would require certain disclosures in political
telephone calls.
Maryland
A bill has been proposed in the Maryland Senate (SB 10) which would prohibit nonlocal businesses from publishing
advertisements containing local telephone numbers.
Mississippi
A bill has been proposed in the Mississippi House (HB 650) which would apply the Mississippi Do-Not-Call list to
political calls listing monetary or other support for candidates running for elective office. The bill would also
prohibit calls purporting to be polls but actually supporting a particular candidate or issue.
Missouri
Missouri
A bill has been proposed in the Missouri House (HB 319) which would add political calls to the Missouri State
Do-Not-Call list.
New York
A bill has been proposed in the New York General Assembly (AB 1627) which would prohibit marketers of vehicle
warranties from misrepresenting a prior business relationship with the consumer. Such a misrepresentation is
already prohibited by federal and state law.
A bill has been proposed in the New York Senate (SB 538) which would allow individuals to add fax numbers to the state
Do-Not-Call list.
Oklahoma
A bill has been proposed in the Oklahoma House (HB 2050) which would allow businesses to be added to the Oklahoma
Do-Not-Call list.
Texas
A bill has been introduced in the Texas House (HB 478) which would require that prerecorded political telephone
calls disclose that the call is political advertising and identify a candidate or measure the person making the
call supports or opposes. The call would also be required to disclose who paid for the call.
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