A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
January, 2008
FEDERAL
FCC
On January 4th, the FCC issued its declaratory ruling stating that prerecorded and autodialed
telephone calls to wireless numbers that are provided by a called party to a creditor are made
with the prior "express consent" of the recipient and thus do not violate the TCPA's bans on
calling wireless numbers using a prerecorded message or autodialer.
In the past, the FCC ruled that a consumer who has provided his or her telephone number to a
business has consented to a call to that number absent instructions to the contrary. This
ruling both updates that previous statement and specifies that collection calls are no different
than other calls to wireless numbers where the consumer has provided his or her telephone number
with respect to application of this section of law.
The declaratory ruling can be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-232A1.pdf.
The FCC has issued a forfeiture order against an entity which faxed unsolicited advertisements for its
services after receiving a citation from the FCC in March, 2007. The forfeiture order in the amount
of $23,500 was based on only three consumer faxes sent after the earlier citation.
The FCC has issued another forfeiture order against a company offering travel services to Mexico.
The company received a citation in June 2006, but delivered at least 61 or more unsolicited
advertisements to consumers after the citation was received. The FCC fined the travel company
$335,000.
FTC
The FTC has charged an online retailer with deceptive practices based on failure to secure consumer
information provided to it. The FTC also charged that its claims regarding security policies were
deceptive. The FTC alleged that the company failed to provide reasonable and appropriate security
for sensitive consumer information stored on the computer network including unnecessarily risking
credit card information in unsecured storage. The company settled the claims and is required to
establish and maintain a comprehensive security program. The FTC does not provide specific
restrictions to consumer data security situations but uses its general power to prohibit unfair
methods of competition and requires companies to protect consumer information.
The FTC has released a paper summarizing joint law enforcement activities aimed at cross border
telemarketing fraud. In conjunction with Canadian authorities, the FTC brought 19 major consumer
fraud cases since 2000 against cross border telemarketers.
A mortgage company will pay a $50,000 penalty to the FTC after it left loan documents with consumers'
sensitive personal financial information in an unsecured trash dumpster.
The FTC has settled a claim against an entity which obtained and sold consumers' telephone records
without the consumers' knowledge or consent. The settlement bars the company from obtaining or
selling consumer phone records, except where allowed by law, and imposed a judgment of more than
$200,000 against the defendants.
U.S. Congress
A bill has been proposed in the United States Congress (HR.1498) which would add political prerecorded
telephone calls to those covered by the national "do-not-call" list. When I testified in Washington
last month on this topic, at least two other Congress members suggested this type of legislation.
STATE
Colorado
A bill has been proposed in the Colorado Senate (SB 48) which would regulate political prerecorded
telephone calls unless there was a preexisting relationship between the caller and the consumer.
Calls to announce town meetings or fundraisers would be exempt.
Florida
The Florida Supreme Court has declined to hear a case involving the definition of established
business relationship in Florida and Florida's ban on prerecorded messages. The lower court
upheld Florida's ban on prerecorded messages but also allowed commercial calls to persons on
Florida's "do-not-call" list if they had made a purchase in the past 18 months.
Kentucky
A bill has been proposed in Kentucky which would ban prerecorded telephone calls and subject
them to fines ranging from $50 - $1000.
A bill has been proposed in the Kentucky House (HB 247) which would ban unsolicited advertisements
unless there is an established business relationship between the sender and the recipient. All
facsimile advertisements are required to include a disclosure setting forth how the recipient can
opt out of future faxes.
Maine
A bill has been proposed in the Maine Senate (SB 783) which would clarify that Maine's law exempts
calls to established customers from the national "do-not-call" list. The bill would also restore
the safe harbor defense for any defendant who has established and implemented with due care reasonable
practices and procedures to prevent telephone solicitations in violation of the rule.
Missouri
The Missouri House is considering a bill (HB 1606) which would add political calls to those regulated
by the state "do-not-call" list.
A bill has been proposed in the Missouri Senate (SB 840) which would also bar prerecorded political
calls to persons on the state "do-not-call" list.
Nebraska
A bill has been proposed in the Nebraska Legislature (LB 720) which would limit political prerecorded
calls to the hours between 8:00 a.m. and 9:00 p.m. and require a prompt disclosure of the name of the
person authorizing the call.
Ohio
An Ohio appellate court has confirmed a lower court ruling that "knowing" or "willful" treble damages
were not required to be awarded by a court for TCPA violations. The issue of treble damages was within
the trial court's discretion and therefore the appellate court ruled that the trial court was within its
discretion in not awarding treble damages in a TCPA claim. TCPA claimants often allege that violations
are "knowing" in an effort to increase available damages. This is the second time an Ohio appellate court
has rejected such arguments.
Wisconsin
The Wisconsin General Assembly is considering a bill (AB 648) which would prohibit certain automated
telephone solicitations. Recorded calls would be banned unless sent to persons with whom the caller
has an established business relationship.
Regulatory
Info
