DIRECT MARKETING ASSOCIATION
The Direct Marketing Association has issued a summary of federal requirements for properties of prerecorded messages and has indicated that it does not see resolution between the FTC and FCC positions on the topic. Please contact me if you would like to discuss the FTC and FCC regimes.
The FCC has designated an agency to handle portability issues and to administer a database of numbers which have been switched from land line to portability and vice versa. The agency will charge a $1,000 fee to provide access to this database.
The FTC has published a notice that it intends to raise the fees for the "do-not-call" list to $45 per area code with a maximum fee of $12,375 for a national purchase of the list. Currently, the national maximum is $7,375. The FTC is accepting public comments on the rule made through June 1, 2004.
The FTC has sued and forcibly shut down a nonprofit credit repair firm and its for-profit affiliates. The FTC had alleged that the companies violated the Federal Trade Commission Act by misrepresentations and omissions, as well as violations of other regulations and laws.
The FTC also alleged that the agency charged high up-front fees and provided little service to its consumers. In its recent revisions to the TCPA, the FCC indicated that it would be giving additional scrutiny to these types of organizations. This same stance has been reiterated by both the IRS and the FTC. It is important that your script fulfillment materials and services comply with state and federal consumer protection laws and other laws and regulations, especially if you are or work with this type of entity.
Chairman Timothy J. Muris, under whose reign the national “do-not-call” list was established, announced that he was stepping down as Chairman of the FTC. It is uncertain what change this will have with regard to the regulatory atmosphere from this agency.
A bill has been proposed in the Alaska House which would add calls to the national “do-not-call” list to the state list of prohibited activities. The bill would retain the existing, and extremely difficult to comply with, state “black dot” system.
Florida has passed legislation including violations of the Telemarketing Act with its definition of “racketeering activity.”
Hawaii has enacted a law designed to harmonize Hawaii’s telemarketing law with the national “do-not-call” list. Hawaii has adopted the federal disclosures required by the Telemarketing Sales Rule, as well as the federal list.
A bill has been proposed in the Louisiana House which would exempt calls from optometrists, dentists and chiropractors from the definition of “telephone solicitation” for purposes of application of the state “do-not-call” list. “Content-based” exemptions like this are extremely questionable from a constitutional standpoint and, if passed, could make the entire statute vulnerable to a constitutional challenge.
A bill has been proposed in the Michigan House which would amend the state’s Home Solicitation Sales Law to change the liquidated damages clause increasing potential fixed penalties to $2,000 per violation with attorney’s fees from the current level of $250. The state law allows individuals to sue telephone solicitors for misrepresentations or failure to honor individual “do-not-call” requests similar to the Telemarketing Sales Rule.
Another Michigan House Bill has been proposed which would allow criminal sanctions for knowing or willful violations of the state’s telemarketing law.
A Missouri trial judge recently issued summary judgment in favor of a mortgage broker holding that the Missouri “do-not-call” list does not apply to his activities. The Missouri law contains several exemptions, but the Attorney General has attempted to enforce the list even against exempt companies. It is uncertain whether or not the Attorney General will appeal this Order.
MCI has closed a call center in Ohio and claims that the closure is a direct result of the impact of the federal and state “do-not-call” lists. The closure was in the District of Democrat Tim Ryan, one of the only Congressmen to vote against the “do-not-call” list implementation law in 2003.
Utah has amended its Telephone and Facsimile Solicitation Act to adopt the Federal Trade Commission’s “do-not-call” registry. The law also makes changes in the exemptions for nonprofit organizations’ recorded telephone calls.
Vermont has amended its telephone solicitation law to require compliance with the Telemarketing Sales Rule and the Telephone Consumer Protection Act. The bill is effective immediately.
Virginia has amended its telemarketing law to adopt the federal definition of “established business relationship” and to apply its restrictions both to calls to residences and to calls to wireless telephones with Virginia area codes. The law also adopts the federal “do-not-call” list.