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

March, 2004

FCC
AT&T has sued the Federal Communications Commission requesting its records regarding company specific no-call complaints against the company. AT&T has alleged the FCC has refused to disclose more than 1,000 pages of relevant records.

FTC
The FTC has released a report regarding "do-not-call" list registration and complaint figures for 2003 indicating that fewer than 45 companies have received more than 100 consumer complaints. As I have often discussed with my clients, this number may be the threshold after which an investigation is initiated.

The FTC has charged two debt negotiation companies with violating federal law after they claim they could "drastically" reduce the consumers' debt by negotiating directly with creditors. The FTC charged that the defendant's radio advertisements and internet web sites were false and misleading.

The FTC has sought public comment regarding the rule to require businesses to scrub against the national "do-not-call" list every 30 days rather than quarterly.

The FTC has filed a suit in Federal District Court against an Arizona company alleging violations of the Telemarketing Sales Rule. The FTC alleges that the company charged $400 to protect consumers' personal information, but provided little or no services in response.

The FTC has begun an inquiry into a large magazine company's telemarketing practices regarding compliance with the national no-call registry and the Telemarketing Sales Rule governing negative option transactions.

TELEMARKETING CLASS ACTION
A federal jury in Chicago has found plaintiffs' attorneys liable for $36,000,000 for abuse of their clients with regard to a class action filed in Squirrel, IL. This decision may or may not have some effect on the numerous class actions currently being filed under the TCPA and settlement thereof.

UNITED STATES SUPREME COURT
The United States Supreme Court will hear argument this month in a case regarding discretionary licensing by a state regulator. Existing cases hold that the regulator is required to promptly issue a license without discretion to delay beyond a reasonable time. Hopefully the Supreme Court will reaffirm this line of cases.

ALABAMA
A bill is being considered by the Alabama House which would delete several of the exemptions from registration under the Alabama law, including calls for the sale of magazines, calls to set later face-to-face meetings, calls from banks, calls from insurance companies, business-to-business sales, calls from telephone companies and calls from publicly-traded companies. A similar law was adopted by Kentucky making Kentucky's registration applicable to almost every business.

ALASKA
A bill has been proposed in the Alaska House which would apply the federal list to intrastate telephone calls. If this bill ends the state lists maintained by each Alaska telephone company, it will benefit the industry as obtaining the Alaska state lists has traditionally been nearly impossible.

CALIFORNIA
A bill has been proposed in the California General Assembly which would ban the state from contracting with companies which employ nonresidents in the United States to perform telecommunications services on behalf of any state or local agency.

CONNECTICUT
The Connecticut Senate is considering a bill which would require call center employees to identify their name, and the city, state and country in which the employee is located, as well as apply restrictions to transfer of personal identifier or financial information to offshore companies.

FLORIDA
The Florida House is considering a bill which would amend its criminal law to include violations of the state telemarketing law as "racketeering activity" and thus punishable under criminal statutes.

ILLINOIS
The Illinois House is considering a bill which would amend the state "do-not-call" list definition of established business relationship to bring it in line with the federal definition.

KENTUCKY
The Kentucky House is considering a bill which would make it illegal to make a telephone solicitation to any wireless or cellular telephone number. This law would have questionable applicability to interstate telephone calls if passed.

NEW YORK
A bill has been proposed in the New York General Assembly to make the state "do-not-call" list applicable to facsimile transmissions. As you know, unsolicited faxes are generally banned by the Telephone Consumer Protection Act and can subject a business to potentially devastating liability under federal law.

The General Assembly is also considering another bill which would ban Caller ID fraud or any method to cause a consumer Caller ID device to indicate a different telephone number than the number of the telephone being used by the caller.

OREGON
The Oregon Attorney General has entered into a fourth consent agreement with MCI regarding allegations of unlawful trade practices, including failure to provide clear directions to consumers regarding cancellation of telecommunications services.

UTAH
March 8, 2004, Utah passed a law adopting the Utah numbers on the federal "do-not-call" list as the state "do-not-call" list. The State of Utah has appealed a trial judge's ruling that state laws, regarding delivery of recordings, did not apply to interstate telephone calls due to preemption by the federal TCPA. We will vigorously oppose this appeal.

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®. March 1, 2004, Copilevitz & Canter, L.L.C.