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

August, 2004

CELL PHONE SPAM
A lawsuit has been filed by Verizon in New Jersey seeking damages for alleged violations of the "CAN-SPAM" law for billions of allegedly illegal unsolicited text promotions sent to cell phones.

FCC
AT&T has agreed to settle charges that it violated the FCC's "do-not-call" registry and pay $490,000 to the Federal Communications Commission.

The FCC has also published details of its database for wireless "ported" numbers. Under the TCPA, you are banned from calling wireless numbers using a predictive dialer without express consent.

FTC
On July 30, 2004, the Federal Trade Commission published its final rule amending the Telemarketing Sales Rule to increase fees payable by purchasers of the "do-not-call" registry. The maximum fee for the list will now increase to $11,000 or $40 per area code. This increase is slightly less than the increase originally proposed by the FTC, and will go into effect on September 1, 2004.

We recently filed our final brief in an appeal to challenges to the Telemarketing Sales Rule. Oral argument will now be scheduled in the Fourth Circuit in Baltimore, Maryland.

IN-HOUSE "DO-NOT-CALL" LISTS
The question has arisen several times regarding whether businesses are required to send confirmation of removal from a business's calling list in response to a consumer's "do-not-call" request. The FCC has specifically ruled that businesses are not required to send confirmation of removal to consumers, although you may do so. You are required to send a copy of your "do-not-call" policy "upon demand" to any person who requests it. You should remove names from your calling list and send the "do-not-call" policy as quickly as is reasonable, but in no event longer than 30 days from the request to confirm that a "do-not-call" request is recorded at the time the request is made by the consumer. You can review the FCC's opinions on these topics at http://www.fcc.gov/cgb/donotcall/#ordersandnotices.

TCPA
A Virginia court has ruled that an insurance company had an obligation to defend a bank from claims of TCPA liability for facsimile transmissions.

A U.S. Court has ruled that a TCPA class action should remain in federal court on diversity jurisdiction. This ruling is surprising as most courts have ruled these cases are to be heard exclusively in state court.

A New York court has rejected a plaintiff's attorney's request to withdraw a summary judgment he won under the TCPA to convert the action to a class action. The judge found the attorney had no motive other than profit for such a strategy and ordered him to pay the defendant's attorneys' fees.

I recently have learned of instances of caller ID "spoofing" where some unknown party has appended a telemarketer's Caller ID information to an illegal recorded telephone call sent to notorious TCPA plaintiffs. While it does not appear that the plaintiff falsified the call, some third party has created this issue in a fraudulent fashion. Please contact me if you have had a similar experience. I'm told that Caller ID can be easily falsified, and am prepared to vigorously pursue fraud remedies against this third party.

CALIFORNIA
The California General Assembly is considering a bill which would require disclosure of the location of a telemarketer on inbound or outbound calls by request from a California resident.

California has also recently implemented new laws on internet and financial privacy. You should review these laws if you gather information about consumers on your website or work for financial institutions.

FLORIDA
Florida has claims against a major long-distance company regarding allegations of transfer of provider without permission and forged customer signatures.

Florida has also obtained order against another long-distance company ordering refunds to consumers for wrongful billings.

Florida also continues to file suits against telemarketers for alleged violations of its state "do-not-call" lists and state telemarketing law.

ILLINOIS
An Illinois class action is being remanded from federal court to state court. Cases have consistently ruled that TCPA cases are to be brought in state court when filed by private plaintiffs.

LOUISIANA
Louisiana has passed a revision to its fee schedule for purchase of its "do-not-call" list. The Public Service Commission of Louisiana has been directed to establish and maintain a single "do-not-call" list that includes Louisiana consumers on the national "do-not-call" list in addition to persons signing up on the state list. Thus, maintaining two separate, state and federal, lists. The law also contains a safe-harbor if a telephone solicitor is registered in compliance with the law and shows that a violation is a result of unintended error and shows records regarding its compliance.

NEW YORK
The New York Attorney General has settled with an internet marketer alleging sending of deceptive junk email messages. The settlement involved a $40,000 stipulated penalty.

NORTH CAROLINA
A bill is being considered in the North Carolina Senate which would restrict government contracts to service bureaus employing United States citizens.

North Carolina has amended its bill regarding off-shore financial information and disclosure of call center location requirements. The amended bill has been sent to the governor for signature, but no longer contains the off-shore restrictions.

North Carolina has become more aggressive with regard to lawsuits based on consumer "do-not-call" complaints. Complaints are often assumed to be true by regulators, so you should keep good records proving compliance to rebut these allegations if untrue.

WISCONSIN
A bill is being considered in the Wisconsin Senate to reinstate the $10,000 penalty for violations of the state "do-not-call" list which was struck down by a trial judge as exceeding the operating agency's authority.