August 2007 - Call Compliance News

Federal

FCC
The FCC has issued a forfeiture order against a lead generation company alleging that it sent unsolicited facsimile advertisements to at least 110 consumers.  The FCC has assessed a penalty of more than $2,000,000 against the lead company.  The forfeiture order followed a citation against the company which apparently was ignored. While the initial citation from the FCC does not involve a fine or finding of wrongdoing, it is essential to respond to it, and/or contest it, to avoid the possibility of a later forfeiture.

The FCC issued another forfeiture order against a lead company alleging unsolicited faxes and found and assessed a penalty in an amount more than $1.3 million.  Again, the forfeiture order followed an earlier citation which was ignored.

FTC
The FTC announced that there will be no increase in the fees charged for the national “do-not-call” registry this year.  Fees will remain the $60 per area code with the fee for the entire registry set at $17,050.00.  Exempt organizations can still access the registry at no cost.  The FTC also announced that a new contractor will be administering the list. There will be no interruption in “services” to businesses accessing the list.

The FTC has settled charges against entities which allegedly charged small businesses for services which they did not order.  This settlement involved a payment of more than $1.2 million and resolves a lawsuit filed in June 2006.  When consumers called to dispute the charges, the defendants allegedly told the consumers they had verification recordings authorizing purchases.  Both the individual owners of the company and the companies themselves were subject to the stipulated final judgment and permanent injunction barring future misrepresentations and requiring compliance with applicable law.
The FTC has amended a complaint it filed against a telemarketer alleging illegal calls to persons on the “do-not-call” registry to add the successor corporation to the original telemarketer and an officer of the new company.  This entity allegedly acted as an outsourced lead provider to several United States companies.  If you use outsourced vendors, you are still responsible for legal compliance such as “do-not-call” lists and other Telemarketing Sales Rule issues.

The FTC has obtained a restraining order in federal court against a company marketing stored value Visa and MasterCard cards from making unauthorized debits on consumer’s bank accounts.  While such financial products are legal, they are an area of high government scrutiny and scripts and other materials must properly disclose terms and conditions and avoid making any misrepresentations.  The complaint alleges that the calling companies debited a $159.95 application processing fee from consumers’ bank accounts without permission.

An Arizona telemarketing company has entered into a consent decree with the Federal Trade Commission resolving charges that it deceptively sold home-based internet business opportunities to consumers throughout the United States.  The settlement involves a repayment of more than $400,000 to consumers.  The FTC charged that the business represented that consumers who purchased the business system would be likely to earn substantial income with little risk.  The settlement bars the entity from making future misrepresentations with regard to business opportunities and the total cost to purchase, receive and use any goods or services purchased, as well as restrictions on the use of those services.

State
Connecticut
The Connecticut Supreme Court has reviewed a TCPA class action for facsimile advertisements sent to recipients in the state of New York.  Because the sender was a limited liability company, the Court ruled that although the class action was barred, the individual TCPA action could proceed against the company in Connecticut.

Georgia
A Georgia appellate court has ruled that a class action could be certified under the TCPA for sending unsolicited faxes.  The court noted that the class could be modified to exclude persons with whom the sender had an established business relationship and that a class action therefore was appropriate.

Minnesota
Minnesota has amended its Telephone Solicitation Law to include nonprofit debt management service provider calls in those calls subject to the state “do-not-call” list law.  Previously, all nonprofit organizations recognized by state or federal law were exempt from Minnesota’s “do-not-call” list law.  There has been substantial backlash to debt counseling companies at the state and federal level with regard to telephone solicitations.

Missouri
A judge in St. Louis has permanently barred a group of telemarketers from making telemarketing calls to Missouri residents and has ordered them to pay $330,000 in fines to the state of Missouri for violating the state’s “do-not-call” law.  The defendants failed to respond to the lawsuit and did not appear in court, thus a default was taken against them.

In another case, a St. Louis court has barred a Florida mortgage business and a Texas telemarketer from making telemarketing calls into the state of Missouri and ordered the businesses to pay a $155,000 fine to the state.  It is also alleged the defendants called at least 150 consumers whose names were on the state “do-not-call” list.

New York
A federal court in New York has dismissed a TCPA class action against a publishing company for allegedly sending unsolicited faxes to the plaintiff.  New York state law provides that class action may only be filed if the statute specifically authorizes class action, which the TCPA does not.  Other states have allowed TCPA class actions, however, because they are permitted by their laws, so this decision is not controlling outside the state of New York. The federal court therefore dismissed the class action.

Oregon
Oregon has repealed its existing law regarding prerecorded messages.  The new law imposes a 9:00 a.m. to 9:00 p.m. curfew and other behavioral restrictions but still allows calls to established customers of the caller. 

The Oregon Attorney General has reversed his previous opinion that state law was preempted by the federal TCPA.  In a press release, the Oregon Attorney General opined that passage of Oregon Senate Bill 117 reversed the previous preemption analysis and he is now entitled to enforce federal “do-not-call” law in state court through the state Unfair Trade Practices Act.