A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
November, 2008
FEDERAL
FCC
The FCC has rescinded a Citation issued to a major credit card issuer after the credit card company proved that it
had an established business relationship with the consumer and that its calls did not violate the TCPA.
The FCC has issued a notice of apparent liability in the amount of $47,000 against a lead company which allegedly
willfully violated the Telephone Consumer Protection Act's prohibition against unsolicited fax advertisements.
The notice of forfeiture alleges eight violations of the TCPA.
The FCC has issued another notice of forfeiture in the amount of $4,500 against a company which allegedly sent at
least one unsolicited fax advertisement. The recipient of the forfeiture order did not respond to an initial
Citation from the FCC.
The FCC has rescinded a Citation issued to a telemarketer after the telemarketer responded and showed facts proving
compliance with the TCPA. It is important if you receive a Citation from the FCC to respond in a timely fashion as
the FCC can fine you and issue notices of forfeiture if you do not respond to the Citation and it has not been
rescinded.
The FCC has rescinded another Citation issued to an entity which solely placed business-to-business calls. The FCC
concluded that the company "did not initiate the telephone solicitation at issue to a 'residential telephone subscriber
who has registered his or her telephone number on the National Do-Not-Call Registry'" and therefore rescinded the
Citation.
FTC
The FTC announced a major action coordinated with 24 state agencies against 33 companies which allegedly deceptively
claimed the ability to remove negative information from consumers' credit reports. If your scripts make representations
regarding a consumer's credit, you should be aware of additional Telemarketing Sales Rule restrictions applicable to
such claims. This is an area of high interest by state and federal authorities.
The FTC has granted a six month delay of enforcement of the "Red Flag" Rules requiring creditors and financial
institutions to have certain identity theft prevention programs. The Red Flag rules also apply to entities which
access consumer reports for any purpose, including employment. So you should be aware of the Red Flag Rules and
implement compliance procedures.
The FTC has approved its Report to Congress concerning the objectives of the FTC with regard to enforcement of the
Do-Not-Call Improvement Act of 2007. The full text of the report can be read at: http://www.ftc.gov/os/2008/11/P034305dncreport.pdf
The FTC has implemented a new procedure to purge telephone
numbers when they have been disconnected and reassigned to a new consumer. This process will be applied retroactively,
resulting in approximately 5% of the list being removed from the registry.
A mortgage company has settled charges that it compromised the privacy of hundreds of consumers through a data breach
and failed to provide reasonable security to protect consumer data. The FTC specifically applies its Safeguard Rule
to financial institutions requiring them to implement reasonable policies and procedures to ensure security and
confidentiality of sensitive consumer information.
STATE
District of Columbia
An appellate court in the District of Columbia has ruled that a trial court was incorrect in dismissing a TCPA case
based on the fact that the District of Columbia had not passed enabling legislation allowing TCPA claims. Portuguese
American Leadership Counsel v. Investors' Alert, Inc. The court ruled that private causes of action under the TCPA
are permitted in D.C. courts. This ruling is consistent with similar rulings in other states.
Illinois
An Illinois court has ruled that a TCPA class action for alleged illegal unsolicited faxes is not appropriate because
the defendant did not timely remove the case to federal court.
An appellate court in Illinois has ruled that a defendant cruise line was not liable under the TCPA for faxes it sent
to travel agents who had joined a network. The court ruled that the plaintiff agency expressly invited the contact
by joining such a network. Travel 100 Group, Inc. v. Mediterranean Shipping Co.
Louisiana
Louisiana is a state which prohibits telephone solicitations to consumers' cell phone numbers without the express
consent of the recipient. Brenda Headlee, the program manager of the Louisiana Do-Not-Call Program, recently clarified
that this restriction is only applicable to telephone solicitations. Calls which are not telephone solicitations
within the definition set forth in the Louisiana rule are not subject to this cell phone restriction.
Mississippi
The Mississippi Do-Not-Call list will be updated monthly. Part of the rule erroneously states that it would be updated
quarterly, but the Public Service Commission has confirmed that it will be updated monthly.
Missouri
A Missouri appellate court has denied certification in a TCPA class action fax case noting that whether the fax is
unsolicited or not was a key determination. A class definition can not hinge upon a key liability issue in a case
and therefore the court denied the class action.
Montana
The state of Montana has ruled that publicly-traded companies are not required to register as telemarketers pursuant
to that state's telemarketing registration law. This opinion is in writing and I can provide it to you if needed.
New Jersey
A bill has been proposed in the New Jersey Assembly (AB 3257) which would prohibit unsolicited telephone calls requiring
the Department of Law and Public Safety to establish a political No-Call list. The law would contain a safe harbor if
the political caller established written procedures to comply with the list and a call was made in error.
Ohio
An appellate court in Ohio has ruled that a trial court erred when it dismissed a TCPA claim based on plaintiff's delay
in filing suit against the defendant. The appellate court ruled that the defendant was not materially prejudiced by
the delay. Boehm, Kurtz & Lowry v. Interstate Insurance Service Agency.
Pennsylvania
Pennsylvania's attorney general has brought suit against a Florida timeshare and vacation company alleging illegal
marketing practices and a violation of Pennsylvania's Do-Not-Call law. The travel company claims that the calls are
based on referrals from other customers. Referrals are not an exemption from Federal Do-Not-Call lists.
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