December 2005 - Call Compliance News
The Federal Communications Commission has reached a settlement with a major cellular telephone company regarding alleged violations of the Telephone Consumer Protection Act, including the national “do-not-call” list. The settlement involved a voluntary contribution to the United States Treasury in the amount of $100,000. Although the cellular telephone company did not make outbound sales calls to persons other than its own subscribers, the Order required it to implement policies governing its independent dealers. The company is also required to formally establish an internal process to promptly investigate government or private complaints. The TCPA holds a business responsible for the actions of its resellers and agents. For example, a “do-not-call” request made to one agent is binding on the business even if a different agent places another call to that consumer. Businesses with multiple independent agents must ensure that those agents regularly communicate “do-not-call” requests to a central location, and obtain that centralized list for their future calling campaigns.
The FCC has issued a citation to “Doctorplan” alleging violations of the Unsolicited Fax Rules of the TCPA. Unsolicited faxes continue to be the most enforced provision of the TCPA both by the FCC and private plaintiffs. As you may know, several multimillion dollar judgments have been won by private class action plaintiffs in this area. The Junk Fax Prevention Act of 2005 allows faxes to be sent to recipients who have an established business relationship with the business but with certain disclosures. However, the FCC has still not detailed exactly what those disclosures are supposed to be.
The FTC has announced a settlement with regard to “do-not-call” list violations involving the largest penalty to date. More details to follow.
The Federal Trade Commission has obtained a final court order barring several Canadian based telemarketers from offering no call services, as well as committing fraud, including bank fraud and identity theft. The suit alleged that the telemarketers charged a $399.00 upfront fee that provided no services to consumers who purchased product and directly debited consumers’ accounts for this amount. Direct debits on consumer accounts are subject to certain rules both imposed by the FDIC and trade organizations such as NACHA including obtaining a signature to show express consent for such payments. Federal E-Sign law does not necessarily require that the signature be in ink, but you must carefully review your processes if you obtain payment from consumers using these means. The Order requires defendants to surrender $345,000 in penalties.
The National Association of Attorney’s General has announced that all 51 Attorneys General have urged the FCC not to preempt state authority over billing practices for telecommunications services. The FCC is therefore considering multiple preemption issues with regard to telecommunications and telemarketing at this time, although action is expected soon with regard to preemption of state “do-not-call” lists and delivery of recording rules. As you may know, both federal telemarketing rules, the TCPA and TSR, allow state attorneys general to sue to enforce their provisions, so states are not without power to protect their citizens under the federal rules scheme. The TCPA still is most often enforced by private plaintiffs, both individually and as purported class actions in state courts. Recent federal class action reform law, however, has caused some TCPA class actions to be moved to federal court, generally thought to be more favorable to defendants.
Both Houses of Parliament in Canada have passed legislation implementing a national “do-not-call” list. The Canadian Radio-television and Telecommunications Commission will soon implement regulations establishing this list.
An Alabama appeals court has rejected the claim of a TCPA plaintiff that he was entitled to damages for “willful or knowing” violations of the TCPA for unsolicited facsimiles that he received. The appeals court ruled that the plaintiff is not entitled to all damages asked for even though the defendant defaulted. The appeals court ruled that the plaintiff was entitled to $500 per facsimile received.
An Arizona appeals court has ruled that a TCPA plaintiff was entitled to damages under the TCPA based on a text message he received on his cellular telephone. The TCPA bars automatically dialed calls to cellular telephones without express consent. The FCC has repeatedly ruled that these restrictions apply both to text and voice messages. You can only place calls to cell phones using a dialer if you have express consent to place the call. The definition of “express consent” under this section of the TCPA does not require it to be in writing or signed, but you need to maintain accurate records of consent, and the consent must not be deceptive or otherwise illegal, as it is the business’s burden to prove consent if challenged.
A challenge has been filed to California’s new “junk fax” law which requires that unsolicited faxes only be sent with express written consent of the recipient after January 1, 2006. Federal law allows faxes with an established business relationship and proper opt out language. The National Chamber of Commerce has filed suit alleging that California’s law is preempted by the TCPA.
An appeals court in Colorado ruled that Colorado did not have to adopt additional legislation to allow TCPA cases in its state courts. Many state courts have made this ruling, i.e. no additional legislation is necessary on the state level for a consumer to file a TCPA action.
Louisiana has lifted the calling ban in area codes 337 and 985. The ban remains in effect only for area code 504. Louisiana is the only state which has passed a law barring calls during a declared emergency, though this might change in the future.
A bill has been proposed in the Pennsylvania Senate which provides that a mobile telephone provider may not publish a subscriber’s telephone number in a directory without express consent, nor can such a directory be sold by the company unless the customer is informed in advance that the number may be included in a publicly available directory and consents.
Texas has increased its per location filing fee for telemarketing registration to $200 + $15 for each additional location. Previously the state had charged $10 for each additional location.