A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
February, 2007
FEDERAL
ATA
The ATA is currently set to issue self regulatory standards addressing consumer needs in an attempt
to minimize the need for future legislation. The regulatory standards will set the professional
guidelines within the call center industry. Self regulatory efforts are almost always better than
legislative response to consumer complaints, and I would recommend that, if acceptable, you support
these guidelines.
FTC
The FTC has issued its list of top consumer complaints from 2006. "Do-not-call" list complaints were
not in the top five. Identity theft complaints constituted more than one third of the total number
of complaints.
The FTC has reiterated that consumers should not be concerned that their cell phone numbers will be
released to telemarketers at any time in the future. Cell phone numbers may not be called using
predictive dialers without express consent.
TCPA
A recent MSNBC story, http://redtape.msnbc.com/2007/02/suing_telemarke.html,
publicized the availability of the TCPA to obtain judgments against telemarketers in small claims court. The article
mentions other websites which walk potential plaintiffs through TCPA claims. You should be aware, however, that not
every professional plaintiff brings valid claims appropriate for settlement. If you do settle every claim, valid or
not, you may become a target for future actions. Please contact me if you would like to discuss this matter further.
U.S. Congress
A bill has been proposed in the U.S. House of Representatives which would amend the Telephone Consumer
Protection Act to specifically prohibit deceptive caller ID information. Entities would still be permitted
to block caller ID transmission, but deceptive caller ID would specifically be banned and the FCC would be
directed to promulgate regulations implementing that prohibition.
STATE
Colorado
A bill has been proposed in Colorado (HB 1303) which would create a Colorado junk mail opt-out list,
with exemptions for charitable nonprofit organizations, political organizations, and businesses with
which the recipient of the mail has an established business relationship. Currently, there is no similar
state or federal statute in existence; although a federal postal law allows consumers to opt-out of
unsolicited adult mailings.
Connecticut
A bill has been proposed in the Connecticut Senate (SB 1232) which would include text messages within
the definition of marketing or sales solicitations subject to the state "do-not-call" list law.
Florida
A hearing has been scheduled before an appellate court in Florida with regard to whether past purchasers
fall within the established business relationship exemption to the Florida "do-not-call" list. The
Florida Department of Consumer Protection has argued that a past purchase (e.g. at a department store)
does not constitute an established business relationship for the purposes of Florida law. This argument
belies the text of the law which includes "past" relationships, but the Department of Consumer Protection
did prevail at the trial level.
Kansas
A bill has been proposed in the Kansas Senate (SB 195) which would include political telephone calls
which do not disclose who paid for the call in the state's definition of "corrupt political advertising".
Minnesota
A bill has been proposed in the Minnesota House of Representatives (HB 116) which would require
telemarketing sales or service call centers to disclose their physical location upon request and to
request service from a person located in the United States if desired.
A bill has been proposed in the Minnesota Senate (SB 833) which would require that third party
services billed on telephone bills include a contact number for the third party.
Missouri
A host of bills have been filed which would bar prerecorded political calls to persons on the
state "do-not-call" list. Apparently, these bills have bipartisan support in both the Missouri
Senate and House of Representatives. The FTC has requested a permanent injunction from the United
States District Court against an entity which allegedly deceptively obtained and sold consumers'
confidential phone records without knowledge or consent. By this action, the FTC continues to
aggressively investigate lead generation and sales activities. Lead generators are just as likely
to be investigated for Telemarketing Sales Rule violations, for example, as the telemarketers
themselves.
New York
A bill has been proposed in the New York Senate (SB 2852) which would impose a curfew between the
hours of 5:00 and 7:00 p.m. and 8:00 and 10:00 a.m.
North Carolina
A federal judge in North Carolina has found that a Texas satellite television company violated the
TCPA by calling hospital telephone lines with prerecorded telemarketing messages. The TCPA prohibits
all autodialed, prerecorded and predictive dialed calls to public safety numbers and you should
implement procedures to avoid calling these numbers, even if your calls are legal to other consumers
or residences.
U.S. Congressman John Doolittle (R) has introduced legislation to include political prerecorded calls on
the national "do-not-call" list. Similar legislation has been proposed in many states.
Oklahoma
A Federal Court has ruled that a state representative violated the Telephone Consumer Protection
Act by sending more than 20,000 prerecorded messages last year to Oklahoma citizens. The judge
ruled that the prerecorded message did not disclose the name and telephone number of the business
of the individual initiating the call. The TCPA states that all calls must disclose the name of
the caller and a telephone number which can be used to make a "do-not-call" request during normal
business hours. The TCPA does not contain exceptions for any sorts of prerecorded calls, even
non-solicitation, information, or political calls.
Texas
A bill has been proposed in the Texas Senate (SB 599) which would require that telephone calls
supporting or opposing a candidate or ballot issue disclose who paid for the message or who
authorized the call.
Regulatory
Info
