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

September, 2003

FTC
In response to a request for an opinion letter from an insurance company, the FTC has taken the aggressive position that telemarketing for insurance companies is not an activity in the "business of insurance" and is thus subject to the Telemarketing Sales Rule and the national "do-not-call" list. Although the FTC does not make a definite statement, the letter states that the FTC might apply the "do-not-call" list depending upon the facts and circumstances, especially if the activity is not otherwise regulated by state law. This letter indicates that the FTC does not intend to agree with Stonebridge Insurance Company in its lawsuit or in this informal opinion that service bureaus hired by insurance companies are exempt from the Telemarketing Sales Rule. The litigation will continue.

The FTC has filed suit against three corporate debt collectors alleging that the companies falsely threatened consumers with arrest and prosecution unless the consumers immediately paid unsubstantiated debts. The Fair Debt Collection Practices Act is among the most consumer friendly laws in existence. If you conduct debt collection on behalf of your clients, you should immediately insure compliance with that and other applicable law.

NATIONAL "DO-NOT-CALL" LIST
The first available version of the national "do-not-call" list has more than 48 million numbers. Initial review of these numbers showed that 8.4 million were cell phone numbers to which predictive dialer calls are generally prohibited. I will continue to keep you posted regarding results of analysis of the list and will welcome any comments you have.

CALIFORNIA
California Senate is considering a bill which would amend the state's "do-not-call" law to allow residential and wireless telephone subscribers to sign on to the state "do-not-call" list.

COLORADO
Colorado has filed suit against a mortgage lender for alleged violations of the state "do-not-call" list.

IDAHO
The State of Idaho has eliminated the fee for residents to sign onto the state "do-not-call" list. Idaho citizens who register for the federal list will be automatically added to the state list. State privacy laws, however, prohibit the Attorney General's office from transferring registration information from the state list to the federal list. It remains to be seen how state lists will interact with the federal list, although I expect the FCC to preempt state list application to interstate telephone calls.

KANSAS
The State of Kansas has designated the Federal Trade Commission as the authority which will manage its state "do-not-call" list.

MAINE
The Maine Department of Secretary of State has repealed its rules regarding automated telephone solicitation as the underlying statute has been repealed. The Telephone Consumer Protection Act still restricts this activity at the federal level.

NEW JERSEY
The New Jersey Division of Consumer Affairs has proposed a rule setting forth bidder qualifications for an entity desiring to maintain the state "do-not-call" list.

NORTH CAROLINA
North Carolina has passed a state "do-not-call" list law which requires businesses to access and implement the Federal Trade Commission's national "do-not-call" list. Calls by or on behalf of tax exempt nonprofit organizations are exempt as are calls by or on behalf of telephone soliciting businesses which employ fewer than ten full-time or part-time employees. The law also has restrictions on delivery of recordings. Consumers can bring suit to enforce the law for $500 for the first violation, $1,000 for the second violation and $5,000 for the third and subsequent violations within two years of the first violation.

OREGON
The Oregon Senate is considering a bill which would designate the federal "do-not-call" list as the state's "do-not-call" database and authorize the Attorney General to forward requests from consumers in Oregon to add their names to the Federal Trade Commission list.

NORTH CAROLINA
A bill has been proposed in the North Carolina Senate which would create a "do-not-call" list. The bill would also require disclosures similar to those required by the Telemarketing Sales Rule and would create an "immediate disconnect" requirement.

Calls by or on behalf of tax exempt nonprofit organizations would be exempt as well as calls to set a face-to-face meeting.

PENNSYLVANIA
Pennsylvania has become increasingly aggressive regarding alleged violations of its state "do-not-call" list. Pennsylvania law has a unique provision allowing the complaining consumer to share in any damages obtained by the state.

The Pennsylvania General Assembly is considering a bill which would ban conducting an "advocacy push poll" defined as a telephone survey attempting to sway public policy interests by referring to an electorate official or political party. Such polling would be prohibited if the caller does not collect or tabulate survey results and prefaces a question on the basis of an untrue statement. The bill clearly is an attempt to regulate political speech and would more than likely be unconstitutional if passed into law.

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®. September 1, 2003, Copilevitz & Canter, L.L.C.