October, 2005

FCC
The Federal Communications Commission has issued its annual report regarding the national "do-not-call" registry. The Commission notes that 25 states still maintain their own "do-not-call" list and 17 of those states have downloaded their numbers into the national registry. The Commission has adopted an 18 month transition period for states to download their lists into the national database. The FCC has initiated 93 investigations into companies which allegedly violated the national "do-not-call" registry. This information can be reviewed at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-2056A1.pdf

FTC
The FTC has obtained a settlement banning a Canadian telemarketing company from calling into the United States. The settlement involved allegations that the defendants deceptively claimed to be Social Security or Medicare representatives.

The FTC has reached a settlement with two entities which it alleged deceptively charged consumers to add their names to the national "do-not-call" list. The entity charged more than 12,000 consumers for this service.

A client of mine has filed suit against the FTC with regard to its interpretation that prerecorded messages are "abandoned" under the Telemarketing Sales Rule. The FCC has specifically allowed certain classes of prerecorded messages under the TCPA, and my client has argued that the FTC can not make an "end run" around a matter specifically assigned by Congress to the FCC's jurisdiction and control. The prerecorded calls in question were placed on behalf of the Salvation Army for relief of victims of Hurricane Katrina.

The Federal Trade Commission has barred two companies and their owners from violating the federal "do-not-call" list rule after allegations that they called numbers on the national "do-not-call" registry. The travel companies paid a $5,000 civil penalty.

A credit card payment processor and its owner have settled charges that they knew or should have known that debits were not authorized by consumers. Settlement requires that the defendants take steps to ensure their clients are legitimate businesses which comply with the Telemarketing Sales Rule and the FTC Act. It also requires the defendants to monitor return rates for payments processed for clients and investigate when return rates exceed 2.5%. The Telemarketing Sales Rule's standard of "accomplice liability" requires that businesses investigate their partners and can hold them liable if they "know, have reason to know, or consciously avoid knowing" of violations of the rule committed by their partners, and continue to provide their partners' services.

ARIZONA
An Arizona Appellate Court has ruled that the Telephone Consumer Protection Act bars e-mail text messages with unsolicited advertisements. This ruling is in line with FCC opinion on the topic which has held that text messages are regulated by the TCPA even though text messages probably did not existence at the time the TCPA was passed.

CALIFORNIA
A California Senate bill would require express consent from cell phone users to include their telephone numbers in a directory.

ILLINOIS
An Illinois federal court has ruled that a defendant could not remove a state class action under the TCPA to federal court. The TCPA is a very strange law in that it creates a federal cause of action enforceable almost exclusively in state court. State courts can be more friendly and/or convenient to local plaintiffs.

INDIANA
A Federal Court in Indiana has rejected our challenge to the state's "do-not-call" list and denied that we had standing to challenge the exemptions regarding newspapers, insurance companies, and other exempt commercial activities. We will consider an appeal.

Indiana has announced that it has obtained a permanent injunction against a telemarketing company involving allegations of calls on the state's "do-not-call" list. The defendants are required to pay a fine of more than $100,000.00.

LOUISIANA
The Louisiana Public Service Commission has been very vigilant regarding sending telemarketers updates on the state of emergency caused by hurricanes. Louisiana is the only state that has a law banning telephone solicitation during times of emergency.

MISSOURI
Missouri's Attorney General has obtained a temporary restraining order against a public safety solicitor. The Attorney General alleged that the company's employees falsely identified themselves as police officers.

NEW JERSEY
A New Jersey court has held that the four year federal statute of limitations applies to TCPA claims, not the shorter state statute. This decision is in direct conflict with the Texas decision holding the state statute of limitations applied to these actions.

OHIO
A notorious private plaintiff has appealed a TCPA decision, but his attorney failed to file the appeal on time and it is unlikely to be heard on the merits.

OKLAHOMA
In a facial challenge to a state law regarding charitable fundraising, the Oklahoma Attorney General has argued that a charity does not have standing to challenge the law and that the statute is not "ripe" for court review because Oklahoma has not yet enforced the law. A long line of cases hold that in First Amendment challenges, a speaker is not required to wait to be prosecuted to challenge a law's constitutionality. The very fact of the law's existence "chills" speakers who may not speak at all rather than risk prosecution.

WISCONSIN
Wisconsin has filed suit against a Florida-based seller of travel alleging that it failed to register as a telemarketer, called Wisconsin residents on the new "do-not-call" list, used electronically prerecorded messages and caller ID blocking, and failed to make required disclosures.

Wisconsin has obtained a default judgment against a Las Vegas telemarketer in a suit which involved allegations of calls to persons on the Wisconsin "do-not-call" list, as well as harassment.