November, 2005

FCC
The Federal Communications Commission has confirmed that the Junk Fax Prevention Act of 2005 is not enforceable until the FCC passes regulations setting forth several essential terms of compliance with that law. While the FCC can not and will not enforce the law until these regulations are promulgated, the law does have a private cause of action and some plaintiffs’ firms have already sued under its terms. If you would like to discuss compliance with the law or a possible defense to such actions, which I think are unenforceable until the FCC takes regulatory action, please contact me.

I recently spoke with an attorney with some management authority regarding the FCC’s enforcement of the Telephone Consumer Protection Act who said that preemption action with regard to the many petitions filed with the Commission could happen “soon”. These petitions were filed with the Commission more than two years ago and it will ultimately take some action against preemption although political pressure from the states is high

In October and November, 2005, the FCC Enforcement Bureau issued five citations alleging violations of the TCPA’s rules on unsolicited fax advertising. Unsolicited faxes have continued to be the most prevalent TCPA enforcement action, especially by private plaintiffs’ and class action attorneys. You should review any faxes your business engages in to ensure compliance with these rules.

The FCC has published restrictions on LEC billing including telecommunications companies providing billing name and address to third parties except as allowed by the regulation.

FTC
The FTC has announced that it has filed nineteen (19) federal court cases between August and October, 2005 with regard to enforcement of the Telemarketing Sales Rule.

The Federal Trade Commission has charged a Canadian based telemarketing company with fraud regarding offers of cash prizes and foreign bonds. The allegations also involve violations of the national “do-not-call” registry.


TCPA
A federal court has, for the first time, allowed removal of a TCPA action based on the fact that the entity was facing more than $5,000,000.00 in damages. The new federal class action law allows removal of class actions in that situation, despite the fact that the TCPA, and many courts, have repeatedly said that TCPA actions are to be in state court.

A federal court has rejected a private plaintiff’s TCPA claim that the fax failed to contain identifying information. Many TCPA plaintiffs often include other alleged violations in an effort to increase the amount of any judgment or settlement. This court has specifically ruled that the private cause of action is only available for certain types of TCPA violations, not every violation that can be conceivably made of the law. This is an important case in the battle against professional plaintiffs.

SEC
The Securities and Exchange Commission has approved a rule restriction which bars brokers from contacting persons on the national “do-not-call” registry. Because the SEC’s jurisdiction is different from the FTC and FCC, this ruling now extends the “do-not-call” list to these entities.

California
Governor Schwarzenegger signed Senate Bill 833 which bars unsolicited advertisements sent via facsimile and requires facsimile communications to contain the date and time sent, the identification of the sender, and the telephone number of the sending machine or business. Although the Bill contains an exemption for tax exempt nonprofit organizations sending its members facsimiles, there is no exemption for an established business relationship, thus making this California law more restrictive than the federal TCPA.

A new law in California would require that a mobile telephone company obtain express consent from a consumer prior to including that telephone number in a directory and allowing the consumer to opt-in via the internet only if there is no default opt-in choice.

A California federal court has dismissed a TCPA suit against an individual whose company allegedly sent unsolicited faxes into the state. The California federal court ruled that the individual had not engaged in behavior which constituted minimal contacts with California. Most TCPA suits are in state court, but this could be an important ruling for interstate telephone calls.

Florida
A Florida court has entered an injunction against a retail business which placed recorded calls to its own customers. These calls are allowed pursuant to federal law, but the court ruled that Florida state law barred the calls even though they were interstate telephone calls. If the FCC takes preemption action, the effect of this case will be reversed.

Illinois
An Illinois court has ruled that a business was protected by its insurance policy for an action of sending unsolicited faxes in violation of the Telephone Consumer Protection Act.

Louisiana
Louisiana has lifted its ban on calling into area codes 225 and 318 during the current state of emergency. Louisiana is the only state that has a law prohibiting telemarketing calls into the state during a declared state of emergency. The ban will remain in effect for area code 337.

Missouri
An appeals court in Missouri has ruled against a TCPA plaintiff which had requested information regarding all the faxes sent by a business. The Court ruled that faxes sent by third parties were unrelated to the pending action.

New Jersey
The U.S. Senator for New Jersey, Jon S. Corzine, has introduced a bill which would prohibit telemarketers from calling New Jersey citizens regarding their Medicare prescription drug benefit. It is unlikely that a “content based” ban on calling regarding one industry or subject matter could survive constitutional scrutiny.

New York
An appeals court in New York has ruled that the TCPA can not be used for a class action in New York because the statutes set specified damages for plaintiffs.

Pennsylvania
A bill has been proposed in the Pennsylvania House which would require telemarketers and other businesses to allow at least 25 days from the date on a bill for payment to be made.