December 2006 - Call Compliance News
The FCC has released its quarterly report summarizing complaints they received from consumers during the second quarter of 2006. TCPA complaints ranked as one of the top complaints from wireless subscribers replacing equipment complaints. Specifically, consumers complained of receiving artificial prerecorded messages on their cellular lines without prior consent as well as failure to honor “do-not-call” requests.
The FCC continues to issue numerous citations for alleged violations of the TCPA’s do-not-fax provisions. Unless you are an FCC regulated company, the FCC can not fine you for violations of the TCPA until a formal citation has been issued. That citation can be contested, but violations following an official citation will likely be assessed fines, in some cases vastly exceeding the $500 per phone call or fax set forth in the rule.
It appears that the remaining service bureau defendants in the DirecTV case have settled the FTC’s allegations against them of violations of the Telemarketing Sales Rule. The FTC has many investigations ongoing with regard to the Telemarketing Sales Rule, and you should carefully review your compliance procedures either if you are a seller or a service bureau.
One area of particular note should be your compliance with abandonment provisions limited to three percent abandonment per day/per campaign. You also need to play a recorded message for all abandoned calls, keep records regarding compliance, and set your dialer to ring at least four times or 15 seconds before disconnecting calls which are not picked up. All four measures are required for compliance with the abandonment “safe harbor”.
A debt collector has agreed to a payment of $1,000,000 to settle FTC claims that it violated the Fair Debt Collection Practices Act. The settlement bans the companies from engaging in any future debt collection activities and alleged that the defendants harassed consumers regarding unenforceable debts.
Discover Financial Services was ordered to pay $19,500 to Diana Mey regarding telemarketing calls she received in January, 2003. The calls were placed to the previous owner of her number but Mey had made a “do-not-call” request to Discover using that telephone number.
U.S. Supreme Court
The Supreme Court is considering a challenge from a North Carolina bank to varying state regulations regarding its Mortgage Business. This challenge is relevant to telemarketing which is also regulated at the federal level and by a “patchwork quilt” of state regulations which often vary from and contradict the federal standard.
A bill has been proposed in Florida (HB 33) which would bar calls by political candidates to persons on the Florida “do-not-call” list. The law would apply both to prerecorded and live political calls.
Ryan Swanberg continues to wage a campaign to profit from alleged Telephone Consumer Protection Act violations. Mr. Swanberg no longer demands money solely from persons who call him, and allegedly violate the TCPA, but has moved on to demand “do-not-call” policies from nearly every business whose address he can find, then claim a violation of the TCPA for failure to send the “do-not-call” policy to him via overnight mail or for other reasons. You should be aware that the Telephone Consumer Protection Act allows a private cause of action only if the consumer has received more than one telephone call in violation of the regulations. Thus, although a business not providing a “do-not-call” policy to anyone who requests it is likely violating the TCPA and may be answerable to the FCC, the private claim is wholly without merit. If you receive a letter from Mr. Swanberg, you should contact counsel immediately.
A bill has been prefiled in the Missouri House of Representatives (HB 26) which would create a do-not-fax database to be operated by the Missouri attorney general. Unsolicted faxes are already banned by federal law. The bill would also include prerecorded calls for noncommercial or political purposes within those calls prohibited to persons on the Missouri state “do-not-call” list. Another bill (HB 78) has been prefiled which would also include political prerecorded calls within those covered by the Missouri “do-not-call” list.
A bill has been proposed in the Missouri Senate (SB 49) which would bar automated political calls entirely, except with prior express invitation or permission or if introduced by a live operator. Knowing violations of the ban would be subject to a civil penalty of up to $5,000 for each violation. Individuals who receive more than one automated political solicitation within any twelve month period would be able to sue and receive up to $5,000 for each knowing violation.
North Carolina’s attorney general has proposed including prerecorded messages from political candidates in calls prohibited to persons on the national “do-not-call” list. These calls are political speech, but a federal court in Indiana upheld Indiana’s ban on such calls, so the North Carolina legislature could likely accomplish this goal if legislation is carefully crafted. However, given the cyclical nature of political calling, it is unlikely that there will be much attention to this issue until the next election.
A bill has been introduced in the New Jersey Assembly (AB 3765) which would modify existing law regarding prerecorded messages. Currently, the law specifically is limited to callers within the state of New Jersey. This bill would delete that language and increase the penalties for violation of the state rule (which bars unsolicited calls) to a penalty of up to $10,000 for the first offense.
A bill has been proposed in the Pennsylvania Senate (SB 1389) which would amend the state’s registration law to include solicitations for donations for political candidates. Pennsylvania residents would be permitted to designate their “do-not-call” requests to include political calls or not. This statute seems difficult to enforce as Pennsylvania no longer maintains its own “do-not-call” list.
A bill has been proposed in the Texas House (HB 143) which would include text messages to mobile telephone numbers in calls subject to the Texas “do-not-call” list.