March 2006 - Call Compliance News
The FTC has reached a settlement with a company operating book clubs. The settlement involved a $680,000 penalty based on more than 100,000 calls to consumers on the national “do-not-call” registry.
The Federal Trade Commission testified before the House of Representatives Committee on Energy and Commerce regarding sale of consumer telephone records. This may be a precursor to Federal Trade Commission regulation of lead sales in this area.
“Do-not-mail” bills have been introduced in Missouri, New York, and Illinois. Until now, the only applicable restriction to mail communications has been a regulation regarding obscene mailings.
A California Federal Court has ruled that the TCPA preempts California’s law with regard to faxes and that California’s fax law (requiring written consent) applies only to intrastate faxes. This is an extremely important decision as it is also relevant to the other provisions of the TCPA such as those creating the national “do-not-call” list and regulating prerecorded messages. Until the FCC rules on preemption or the Supreme Court takes this case, however, states may disagree with this decision, and can cite cases which have ruled the other way in support of their argument that state laws do apply to interstate calls.
A Florida telemarketing company has negotiated a $300,000 settlement for violation of the “per solicitor” registration requirement found in state law. If you are not exempt from registration in Florida, you should review this requirement to ensure compliance.
A Bill has been proposed in Florida, HB 777, which would prohibit making any telephonic sales call to any cellular telephone number without prior consent from the subscriber. The Bill requires prior written express consent.
A Bill has been proposed in the Kentucky House, HB 536, which would adopt the federal “do-not-call” list in place of the current state “do-not-call” list.
A Bill has been proposed in the Michigan House, HB 4423, which would amend the state’s home solicitation sales law as applied to telemarketing solicitations. The Bill would specifically prohibit misrepresenting a current business relationship between the consumer and the telephone solicitor. Such misrepresentations are already illegal under State and federal law.
A Bill has been proposed in Mississippi, Senate Bill 2695, which would reenact the state’s Telephone Solicitation Act with no changes. The law currently assigns enforcement authority to the state Public Service Commission.
A Bill has been proposed in the Missouri Senate, Senate Bill 613, which would allow wireless business subscribers or residential subscribers to add their telephone numbers to the state “do-not-call” list. As set forth below, the inclusion of business telephone numbers in a “do-not-call” list is likely unconstitutional. The Bill would also prohibit obtaining telephone records of consumers without the express consent of those persons. “Telephone record” is defined as information retained by telecommunications carriers relating to the numbers dialed by the customers or incoming numbers received by a customer. The Bill has civil and criminal penalties.
A Bill has been proposed in the New Jersey General Assembly, Assembly Bill 2713, which would require the Division of Consumer Affairs to publish a directory of registered telemarketers on a monthly basis.
The General Assembly has also petitioned the Federal Communications Commission to not preempt the state “do-not-call” law, Assembly Record 145.
A Bill has been proposed in the New York General Assembly, New York Assembly Bill 9858, which would add facsimile numbers to the No –Telemarketing-Sales-Call list. Unsolicited faxes are already banned by federal law.
New York’s Public Service Commission allows various entities to provide utility services to consumers and businesses and to compete in that market. Currently, marketers hired by regulated utility providers do not have a separate license or registration. The Public Service Commission is, however, considering a separate license or registration for marketers hired by utilities or energy providers to market their services in the state.
The North Dakota Attorney General is taking the position that the prerecorded abandonment message required by Federal Law is a violation of state law. This opinion was set forth informally, and likely would not be the actual formal position the state took as it would support preemption of this state law in direct conflict with the federal standard.
A Bill has been introduced in the Tennessee Senate, FB 3162, which would change the state’s “do-not-call” law. The Bill would require that telephone companies provide residential subscribers the opportunity to object to telephone solicitation at the time of initial subscription of service. There would be no waiting period on this request which would be effective immediately.
A Bill has been proposed in Vermont, HB 248, which would specifically require political lobbyist to disclose funds spent on telemarketing. Polling and similar activities are included in the disclosure which is not limited to election activity but includes any attempt to influence legislative or administrative action.
A Bill has been proposed in the Washington House, HB 2340, which would specifically apply the terms of the state’s telephone solicitation law to Mortgage Brokers and loan originators.
A Bill has been proposed in Wisconsin, Senate Bill 116, which would add cellular telephone numbers to the state “do-not-call” list. The Bill would also allow small businesses to add their names to the state “do-not-call” list. This inclusion is likely unconstitutional as “do-not-call” lists are based upon the consumer’s right to privacy. Courts have ruled that businesses have no right to privacy.