A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
December, 2008
FEDERAL
FCC
The FCC has issued a notice of forfeiture against a toner company alleging that the company sent at
least 219 unsolicited advertisements in violation of the TCPA. The FCC has issued a forfeiture in
the amount of $1,040,500, or more than $4,000 per fax. The company had originally been cited in 2006
and, in addition to unsolicited faxes, sent at least 10 faxes to consumers who specifically requested
not to receive further faxes from the company. The FCC applied an additional forfeiture amount for
these 10 alleged violations.
The FCC has issued a Notice of Forfeiture against a lead company for allegedly sending at least 9
unsolicited faxes. This forfeiture was in the amount of $51,500. The advertisements involved mortgage
financing, health and life insurance, credit and debit card services, shutters, t-shirts, and lead services.
FTC
A debt collector has agreed to pay $2.25 million to settle FTC charges of violation of the FDCPA and the FTC
Act. Allegations include calls to consumers at their workplace when the employer prohibited such calls, as
well as frequent harassing, threatening, or abusive calls. More than 1000 complaints against the company
were filed with the FTC.
The FTC has settled a claim against a marketer of advanced credit cards. The settlement imposes a monetary
judgment of more than $2.4 million, most of which has been suspended due to inability of the defendant to pay.
The advance fee "credit card" could actually be used only to buy products from the defendant's website or
catalog.
The FTC has asked Congress to consider implementing standards for private entities' use of social security
numbers for identification purposes. Any entity maintaining a consumer account in any form would be required
to adopt reasonable procedures to authenticate the identity of the account holder.
The FTC has settled allegations against a company marketing credit cards to subprime consumers for a refund
of over $100,000,000. The FTC had alleged that a debt collection company owned by the card marketer engaged
in deceptive conduct marketing credit cards as part of debt collection activities. The settlement agreement
requires that future credit card solicitations prominently disclose fees and other restrictions affecting the
initial credit and prohibit misrepresentations about the amount of available credit.
The FTC has entered into a settlement agreement with three telemarketers who allegedly defrauded elderly
consumers. The sales presentations involved household products such as garbage bags and light bulbs. The
settlements prohibit deceptive and misleading statements in violation of the TSR and a judgment in excess
of $13,000,000. Most of the judgment amount was suspended based on the defendants' inability to pay.
STATE
Arkansas
A bill has been pre-filed in the Arkansas House (HB 1019) which would require that all broadcast political
advertisements (including telephone or e-mail) include the statement "paid for", "sponsored by", or similar
language.
Louisiana
A Louisiana appeal court has approved a TCPA class with regard to receipt of unsolicited faxes. The court
found the class to be proper even though some members of the class could eventually be found to have consented
to the fax transmissions (and thus not have valid TCPA claims). Display South, Inc., et al. v. GH Imaging.
Maryland
A Maryland court has ruled that a class could not be certified with regard to prerecorded TCPA calls. The
court ruled that a class action was not the superior form to resolve the potential plaintiffs' claims.
Mississippi
There has been some confusion regarding the new Mississippi rules for sharing the Mississippi do-not-call list.
Mississippi now charges $500 per "contracted company". Noreen Fielder, the administrator of the Mississippi
do-not-call list, confirmed with me on the telephone that a "contracted company" for a telemarketer is a
subcontractor "downstream" from the telemarketing company, not the telemarketing company's clients. The
telemarketing company would be required to pay an additional $500 for each subcontractor, but would not be
required to pay an additional $500 for each client on whose behalf the telemarketer calls.
Missouri
A bill has been pre-filed in the Missouri Senate (SB 43) which would amend Missouri's Do-Not-Call law to
create a do-not-cal list of person who do not wish to receive prerecorded solicitations.
A bill has been pre-filed in the Missouri Senate (SB 65) which would pose restrictions on prerecorded calls
including political calls by adding these calls to the scope of the Missouri do-not-call list. Political
solicitations are also required to disclose "this message is paid for by" and the proper identification of
the sponsor. Finally, entities making radio advertisements that encourage listeners to contact political
officials are required to register with the Missouri Ethics Commission and disclose the identity of the person
paying for such advertisement.
New York
An appeals court has dismissed a purported TCPA class action under New York law which provides that the statute
authorizing a monetary recovery may not be maintained as a class action. Leyse v. Clear Channel Broadcasting.
A New York court has ruled that a defendant is not liable for attempted faxes sent to plaintiff's cell phone.
The court ruled that the TCPA was, therefore, inapplicable because plaintiff received neither unsolicited faxes
nor illegal calls to his cell phone. Pollock v. Island Arbitration.
North Carolina
A North Carolina class action has been dismissed after the plaintiff settled with the defendant. The court ruled
that because settlement of the individual plaintiff's claim did not affect the rights of any other potential class
member, the class could be dismissed. Thomas Cook Printing Company, Inc. v. Subtle Impressions, Inc.
A North Carolina judge has ordered a Florida telemarketer to cease placing calls to North Carolina consumers on
the National Do-Not-Call List. North Carolina does not have its own do-not-call list and thus the attorney
general was enforcing the national list in state court.
Texas
A bill has been pre-filed in the Texas Senate (SB 307) which would regulate political telephone solicitations
requiring that they disclose "paid for by [name of company]" or similar language and barring misrepresentations
regarding the sponsor of a call.
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