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

June, 2003

FTC
The Federal Trade Commission has announced that consumers will be able to sign on to the national do-not-call list beginning July 1. Consumers would be able to sign their names on to the list either via the internet or telephone. Telemarketers are scheduled to be able to access the list beginning in September, 2003. These schedules, of course, could be affected by the various lawsuits which have been filed against the FTC regarding this matter.

The Federal Trade Commission has also announced a series of actions against professional fundraisers. The federal action comes in the wake of the Supreme Court decision in March that states and federal authorities could prosecute charities or professional fundraisers for committing fraud. As has been reported, that decision merely reaffirmed previous cases, i.e. false or misleading statements are prohibited in all telemarketing, commercial or non-profit.

ARIZONA
Arizona is considering a do-not-call law which would exempt charitable calls but not professional fundraisers hired by charities. Calls to customers who have had a relationship within the past 18 months with the caller are exempt from the list.

Arizona has passed a bill which modifies the state's telemarketing registration law. The bill adds intrastate telemarketing calls to telephone numbers included on the national do-not-call list in an effort to close the loophole created by lack of jurisdiction by the FTC over intrastate calls.

GEORGIA
The State of Georgia has passed a law which allows mobile or wireless subscribers to add their telephone numbers to the state's do-not-call list. The federal TCPA already prevents calls to numbers for which the consumer is charged for the call.

HAWAII
A bill has been proposed in the State of Hawaii requiring that telemarketers for both inbound and outbound calls disclose the location of the call center. Other states are considering right-to-know statutes which obviously are a reaction to offshore telemarketing centers. Action is needed now or one or more of these bills may be passed into law.

MAINE
Maine has passed a law which prohibits telemarketers from blocking caller ID devices.

MONTANA
Montana has passed an appropriations bill to fund the state do-not-call list. The bill allocates just over $21,000 in fiscal year 2004 and $39,000 in fiscal year 2005.

NEW JERSEY
New Jersey is also considering a right-to-know law requiring disclosure of the location of the call center on inbound calls.

New Jersey has passed a law creating a state do-not-call list. The list exempts calls to existing customers unless the customer has specifically made a do-not-call request to that telemarketer. The law also provides that the state may require a bond in an amount not less than $25,000 for companies that access the list.

NORTH CAROLINA
North Carolina is also considering a right-to-know law.

A North Carolina bill proposes an immediate disconnect requirement. This requirement, however, is already law pursuant to another section of North Carolina law. The same bill proposes a do-not-call list. That bill would exempt calls by or on behalf of non-profits, by certain small organizations, by callers seeking a face-to-face meeting and calls to establish customers. The bill provides for penalties similar to those set forth in the TCPA ($500 per violation with additional penalties for knowing violations).

PENNSYLVANIA
I had a conversation with the Assistant Attorney General in charge of the Pennsylvania do-not-call list who has the enlightened opinion that the Pennsylvania do-not-call law is designed to prevent calls to consumers who do not wish to receive them, not raise revenue for the state. Thus, he is not concerned if a business uses a scrubbing service or accesses the Pennsylvania list by other means other than directly purchasing it from the Direct Marketing Association. He thought it was important that the organization be able to show how it accessed the list in the event of any errors.

SOUTH CAROLINA
The South Carolina legislature is considering a bill which would create an opt-in list for telemarketers. Consumers would be required to pay a fee to sign on to the list to receive telemarketing calls.

WISCONSIN
Plaintiff's counsel in the challenge to Wisconsin's do-not-call list has provided me a copy of their complaint. The complaint does not challenge Wisconsin's list on constitutional grounds, rather on grounds that the Department of Consumer Protection exceeded its authority under the Wisconsin statute when creating its burdensome do-not-call regime. We will carefully track progress of this lawsuit.

SPAM
The spam issue has certainly delayed some telemarketing legislation and regulations. A trade group has also filed suit against several anti-spamming individuals. The lessons learned during this legislative process and litigation will certainly be of assistance in the telemarketing arena in the future.

The authors make every attempt to provide current, accurate information, but Telemarketing ConnectionS® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing ConnectionS®. June 1, 2003, Copilevitz & Canter, L.L.C.