A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
May, 2009
FEDERAL
FCC
The FCC issued a forfeiture order against a mortgage lending corporation in the amount of $18,000 for
alleged violations of the TCPA. The company had argued that it had an established business relationship
with the persons to whom it sent prerecorded messages, but the FCC disagreed.
FTC
An appellate court has ruled that a telemarketer made deceptive and false claims when marketing a program
concerning mortgage sales. FTC v. Stefanchik, et al. The FTC alleged general violations of the FTC Act
and violations of the Telemarketing Sales Rule for misrepresentations made in telephone presentations. The
FTC argued that contrary to the defendants' claims, it was very difficult for individuals to amass wealth
using their services. The court found the defendants liable for more than 17 million dollars in damages.
The FTC has sued Dish Network over alleged violations of the national "do-not-call" registry. The FTC had
received more complaints about Dish Network than any other company, and Dish Network is the first accused
company which has not settled "do-not-call" violations. The complaint also alleges that Dish Network's dealers
made illegal prerecorded calls to consumers.
The FTC has entered a settlement with DirecTV and a service provider settling charges that the entities violated
the "do-not-call" provisions of the Telemarketing Sales Rule. DirecTV paid a penalty of $2.31 million. The FTC
alleged that the companies called consumers who made company specific "do-not-call" requests.
The FTC and Kentucky's Attorney General filed a complaint alleging a group of companies and their owners violated
the Telemarketing Sales Rule and FTC Act by falsely offering consumers free goods or services. The settlement
permanently barred the defendants from telemarketing or assisting others in telemarketing unless they obtain a five
million dollar performance bond. The settlement also involved a monetary judgment of more than 15 million dollars.
All but $1.3 million was suspended based on inability to pay.
STATE
Alaska
The Alaska House unanimously passed HB 93 which adds calls to wireless numbers to those calls regulated by the
state's telemarketing law.
Florida
The appellate court affirmed certification of a TCPA class of persons who received allegedly illegal faxes.
The court indicated that it will consider whether the TCPA allows class actions in Florida but did not address
the issue in this decision. Guy's World, Inc. v. Condon.
Maryland
A plaintiff's TCPA lawsuit was dismissed by a court based on a prior release the plaintiff signed releasing
all entities associated with prior calls. The plaintiffs had received over 700 unsolicited fax advertisements.
Missouri
The Missouri Senate is considering a bill which would amend the state "do-not-call" list to include personal
cell phone numbers. The bill would also prohibit prerecorded telephone calls to individuals on the "do-not-call"
list unless they have given permission to receive the call or have a current or recent established business
relationship with the caller. Political calls would also be required to include a "paid by" statement.
New York
A bill has been introduced in the New York General Assembly (AB 7563) which would amend the state's telemarketing
law to add prerecorded messages and calls received by voice mail or answering machine services to the definition
of "telemarketing" in the statute. The bill would also require a prompt disclosure of the name of the telemarketer
and the person on whose behalf the solicitation is being made, the purpose of the telephone call, the identity of
the goods or services, and the cost of goods or services that are subject to the telephone call. These restrictions
largely mirror those found in the Telemarketing Sales Rule.
The New York General Assembly has appropriated $400,000 to fund enforcement of the telemarketing laws in the coming
fiscal year.
A plaintiff travel agency won a lawsuit against a cruise company for TCPA violations based on unsolicited fax
advertisements. The court held that established business relationship was not sufficient to allow fax advertisements
under federal law. The court ruled that the FCC's interpretation of the statute allowing an established business
relationship in the past was also incorrect.
North Carolina
A bill has been proposed in the North Carolina General Assembly (HB 686) which would require local telephone companies
to notify telephone subscribers regarding the existence of the "do-not-call" registry and how consumers can register
to be on that list.
Oklahoma
The Oklahoma Senate is considering a bill (SB 413) which would amend the state's telemarketing law to include
business-to-business calls. If passed, business-to-business callers would be subject to the state's registration
statute, unless otherwise exempt.
Ohio
The Sixth Circuit Court of Appeals has ruled that a private plaintiff under the TCPA could recover damages only
"per call" rather than per alleged violation. Charvat v. GVN Michigan. This is a high level appeals court and
the opinion will carry great weight in other jurisdictions with regard to private TCPA claims. Plaintiffs often
allege damages of thousands of dollars for a single call, when Congress contemplated $500 per call in damages which
can be trebled for knowing or willful violation.
Pennsylvania
The Pennsylvania House is considering a bill (HB 1227) which would add political calls to the definition of "telephone
solicitation call" subject to registration requirements in the Commonwealth.
Washington
A bill to eliminate Washington's telemarketing registration requirement (SB 6037) has passed the Senate and has been
the subject of a public hearing in the House. The bill was sponsored by Washington's governor.
West Virginia
In a lawsuit against a telemarketer, the West Virginia attorney general stated that there have been only three prosecutions
under the telemarketing registration law in that state.
A telemarketer argued that it was not subject to the registration requirement in the state based on the federal commerce
clause and the fact that the telemarketer engaged only in interstate commerce. The court disagreed and held that the
registration requirement was not an undue burden on interstate commerce.
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