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

February, 2002

FEDERAL TRADE COMMISSION
The FTC has proposed revisions to the Telemarketing Sales Rule which would make major changes in how telemarketers do business. Perhaps the most important would be the creation of a national "do-not-call" list which would be administered by the FTC and would be very similar to the Direct Marketing Association's current list. Although the national "do-not-call" list would be a legal requirement, the Telemarketing Sales Rule itself allows private causes of action only in limited circumstances (more than $25,000 in damages). Thus, this law does not create a great danger of litigation such as that created by the Telephone Consumer Protection Act. Next, the proposed change would extend the Telemarketing Sales Rule's provisions to the solicitation of charitable contributions. Third, the proposed regulation would prohibit blocking the transmission of the called party's name for caller ID purposes. Deregulation does not specifically address unintentional instances when a caller ID is not transmitted. Fourth, the regulation would prohibit any entity receiving a consumer or donor's billing information from anyone else other than the consumer or donor for use in telemarketing. This provision is addressed at the sale of needed information which includes credit card or other billing information. Additionally, the commentary to the proposed changes interpret the existing "Rule" language to prohibit any call abandonment.

This regulation is not yet in force. Written comments will be accepted until March 29, 2002. Therefore, if you are interested in any of the above provisions or any other provisions contained in the FTC summary, please contact me if you would like my advice concerning the format or contents of a written comment.

ALABAMA
The Alabama Senate has passed a resolution stating that it will be a priority this term to pass an exemption to the state's telemarketing law for real estate agents and brokers.

ILLINOIS
Illinois, in conjunction with the Federal Trade Commission, has obtained injunction against a marketer of advance-fee credit cards. The state also alleged that the defendants violated consumers "do-not-call requests, as well as failure to provide required disclosures.

Illinois is considering a bill which would create a state "do-not-call" list applicable to the solicitation of consumer goods or services and charitable contributions.

The Illinois Senate is also considering a bill which would make it illegal to make any telephone solicitation call to a cellular phone.

INDIANA
The Indiana Attorney General has sent several companies notices of potential fines for violation of its new "do-not-call" law. As you know, we challenged the constitutionality of this act on behalf of a nonprofit client, however we were forced to withdraw that challenge before the beginning of the year. We will be refiling the challenge in mid-February to obtain a hearing on the merits of our challenge. Until then, we advise compliance with the law. However, you should contact me if a substantial demand is based on alleged violations of same. Further, Indiana has distributed a "supplemental" "do-not-call" list after the original quarterly list was distributed. The statute does not permit supplemental distributions and in more than one place describes the list as "quarterly" only. Thus, additional alleged violations based on the supplemental list are also questionable. Please contact me if you would like to discuss this matter further.

MINNESOTA
The Minnesota House is considering a bill which would create a "do-not-call" list. The bill would

also create a registration requirement for telephone solicitors with an annual fee of $150. Telephone solicitors which subscribe to the Direct Marketing Association's Telephone Preference Service will not be required to purchase the Minnesota list.

MISSISSIPPI
The Mississippi House is considering a bill which would require telemarketers to obtain, no less frequently than on a semi-annual basis, the national "do-not-call" list from the Telephone Preference Service.

MISSOURI
The State of Missouri continues to aggressively pursue telemarkters with regard to compliance of the state "do-not-call" law. In the past month, the Missouri Attorney General has announced four more Assurances of Voluntary Compliance.

NEW YORK
New York is considering a bill which would amend the state "do-not-call" list to include advertisements sent by facsimile. Most facsimile advertisements are already illegal under federal law.

NORTH CAROLINA
North Carolina Attorney General has obtained a judgment against a marketer of credit card protection services. The Telemarketing Sales Rule revision, reported above, contains a specific provision creating additional disclosures for sales of credit card protection services.

OREGON
The State of Oregon has begun to aggressively enforce its "do-not-call" law. Oregon was one of the first states to pass a "do-not-call" list law.

PENNSYLVANIA
Pennsylvania's House has passed a law which would amend the Telemarketer Registration Act and create a state "do-not-call" list. The bill would also prohibit blocking of caller identification services. The bill has been forwarded to the Senate for consideration.

RHODE ISLAND
The State of Rhode Island is considering a bill which would require the Attorney General to create a state "do-not-call" list. The "do-not-call" list would be applicable only to the sale of goods or services.