A
Monthly Review of Issues Affecting Commercial Telemarketing
by Copilevitz & Canter, LLC, Attorneys at Law
March, 2009
FEDERAL
FTC
The FTC has issued a notice announcing that it will review its Telemarketing Sales Rule regulations
in 2013 pursuant to a 10 year schedule to review all its regulations. New TSR restrictions on prerecorded
calls go into effect September 1.
TCPA
A U.S. District Court has struck down the FCC's established business relationship exemption for unsolicited
faxes sent prior to 2005 (Goetlieb v.Carnival Corporation). The FCC had ruled in an Order that the faxes
sent to established customers were, in effect, sent with the express consent of the recipient. This court
retroactively struck down that exemption and may assess the sender of faxes substantial fines. This case
may be overturned on appeal.
STATE
California
The California Assembly is considering a bill (AB 792) which would require entities requesting consumers
to opt -in to calls via mail solicitations disclose the telephone number or numbers to which calls will
be placed.
The California Senate is considering a bill (SB 437) which would ban telephone companies from selling to
residential subscribers assigned unlisted or unpublished numbers.
Colorado
A Colorado court of appeals has ordered attorney's fees against a company created to file Telephone
Consumer Protection Act cases. US Fax Law Center, Inc. v. Henry Schein, Inc. An earlier Colorado court
ruled that TCPA claims are not assignable in Colorado, and this Court awarded defendant's attorneyss fees
against the company. The appellate court upheld the award of attorneys' fees.
Florida
A bill has been proposed in the Florida Senate (SB 1132) which would require credit counseling organizations
to register annually with the state plus pay a fee and post a bond. The Office of Financial Regulation would
also be authorized to issue regulations implementing the law.
A Florida Senate bill (SB 1324) would establish a "do-not-mail" state registry if people do not wish to
receive direct mail marketing solicitations.
Georgia
A bill has been proposed in the Georgia House (HB 275) which would add text messages to those regulated by
the state's ban on unsolicited faxes.
Kansas
A bill has been proposed in the Kansas House (HB 2217) which would require that calls made by a candidate
or political committee make certain disclosures and end the telephone call if the consumer gives a "negative
response".
Kentucky
A bill has been proposed in the Kentucky House (HB 18) which would regulate prerecorded political telephone
calls.
Nebraska
A Nebraska Legislative bill (LB 720) went into effect on January 1, 2009 imposing a disclosure requirement
on prerecorded calls as well as a curfew between the hours of 8:00 a.m. and 9:00 p.m.
New York
A bill has been proposed in the New York General Assembly (AB 4157) which would allow persons to add their
fax number to the state "do-not-call" registry.
North Dakota
Although state and federal law do not contain frequency restrictions with regard to the number of times a
given number can be dialed, you should be aware that consumers sometimes complain when dialers call their
numbers repeatedly (and the call is registered on caller ID or otherwise). Although telemarketing laws do
not contain frequency restrictions, at some point a regulator or consumer can argue that the number of
attempts is abusive or harassing. I recently dealt with complaints in the state of North Dakota from two
consumers who were called more than 10 times in a day without answering and state consumer protection
authorities objected to this level of attempts. This matter shows the importance of minimizing consumer
complaints, even if no specific law bars a given practice.
Ohio
A United States court in Ohio has dismissed a TCPA case against a Texas corporation. The court ruled
that "technical" violations alleged in the calls were not enforceable by private action. The private
plaintiff could only seek damages for illegal telephone calls, not allegedly illegal "violations" within
the calls. The court, therefore, dismissed the case because it did not meet the jurisdictional requirement
of federal court. This is an important case in that private plaintiff's often attempt to increase the value
of a suit under the TCPA from the $500 per call amount by adding numerous other violations for which they
claim damages. I have had private plaintiffs seek more than $20,000 from a single call, when the maximum
allowed under the TCPA is $500 per call or $1,500 if the violation is willful or knowing. Burdga v.
Association Health Care Management.
Oklahoma
A bill has been proposed in the Oklahoma Senate (SB 504) which would amend the Telemarketer Registration
Act to specifically exclude businesses and nonprofit corporations from the definition of "consumer", thus
exempting marketing calls to these entities from the scope of Oklahoma's law.
Another bill has been proposed in Oklahoma (SB 833) which would bar all telemarketing sales calls on Sunday.
Pennsylvania
A bill has been proposed in the Pennsylvania House (HB 159) which would apply the state's telemarketing
law to solicitations on behalf of a nonprofit if the solicitation was made by a for-profit fundraiser and
not by "in house" employees.
A federal court in Pennsylvania has allowed a TCPA class action to proceed against a sender of allegedly
illegal faxes. The defendant argued that the case should be heard in state court, only, but the court
disagreed.
Washington
A bill has been proposed in the Washington Senate (SB 5210) which would bar telemarketing sellers from
billing or attempting to charge persons for unsolicited goods or services.
A bill has been proposed in the Washington Senate (SB 6037) which would eliminate Washington's registration
requirement for commercial telephone solicitors. Before this, states have generally resisted efforts to
end duplicative regulations (e.g. state and federal "do-not-call" lists). We will carefully track the progress
of this bill.
Home
| Site Map
| Contact
