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State Do Not Call

April 2006 - Call Compliance News

The FCC has amended its rules regarding faxes to comply with the Junk Fax Prevention Act of 1995. The Rule specifically allows entities to send fax advertisements to parties with whom they have an established business relationship, but require disclosures on faxes even in those circumstances. All fax advertisements are required to provide a clear and conspicuous opt-out notice and to honor opt-out requests within a short reasonable time, not to exceed 30 days. Small businesses are not exempt from the Rule which will become effective 90 days after publication in the federal register.

The FCC has sought comment on the petition of a debt collector for the Commission to declare that autodialed and prerecorded calls to cell phone numbers for debt collection are not subject to the TCPA. Currently, the TCPA bars any calls using an automatic telephone dialing system, or an artificial prerecorded voice to sell numbers as well as public safety numbers.

I have received no response from the FCC about when it might rule on preemption. This is a frustrating situation from a compliance standpoint, and the situation seems to be getting worse with states more aggressively attempting to assert jurisdiction over interstate calls.

An internet marketer has agreed to pay a $900,000 civil penalty with regard to CAN-SPAM violations. The FTC complaint alleges that e-mail messages contained deceptive subject lines and headers to avoid spam filters.

The FTC has proposed a new business opportunity rule which would apply its franchise rules to all business opportunities, even if they have a start up value of less than $500.00. The proposed rule would require a one page disclosure addressing five items for all business opportunities, including earnings claims, a list of criminal or civil legal actions against the seller, refund of cancellation policies, total number of purchasers in the past two years and the number of those purchasers seeking a refund.

The FTC has obtained a $2.4 million negotiated judgment against an entity accused of violating the CAN-SPAM law.
The FTC has also obtained a judgment against a marketer of advance fee credit cards. The Telemarketing Sales Rule prohibits charging a fee for an extension of credit until that credit is actually extended. The $900,000 judgment was suspended based on the defendants’ inability to pay.

I have once again argued in Florida state court that state delivery of recordings laws do not apply to interstate calls, which are properly regulated only by the TCPA. It is likely that this trial court decision will be appealed, by one side or the other, no matter the decision.

An appeals court has ruled that Hooters’ insurance policy must pay for its liability under the Telephone Consumer Protection Act for unauthorized facsimile transmissions. The Hooters’ case was one of the first class actions brought under the TCPA and has spurred many similar suits in other jurisdictions. Court cases are split, however, regarding whether insurance is available to pay these claims. The class action liability established in court was $9,000,000.

An appellate court has upheld sanctions against a law firm which sued based on alleged violations of the Telephone Consumer Protection Act. A company sent a fax to an accounting firm which assigned its claim under the TCPA to a law firm. When threatened with the lawsuit, the sender of the fax requested that the suit be dismissed and that it intended to seek attorney’s fees for frivolous actions if the suit was not dismissed. The sender of the fax presented evidence that it had been sent with the authorization of the recipient and moved for attorney’s fees. This case is particularly relevant with regard to the actions of a certain pro se plaintiff in the State of Minnesota who has several times requested contact and then alleged violations of the TCPA during that subsequent contact.

An appeals court in Illinois has also ruled that a business’ insurance policy applied to damages for sending unsolicited facsimile messages in violation of the TCPA.

A Bill has been proposed in Michigan, HB 5811, which would amend the State Home Solicitation Sales Act to exempt sales of natural gas and electricity from the state’s cancellation period.

A Missouri appeals court has upheld a class certification for recipients of an unsolicited fax from a Missouri company. Classes of fax recipients have generally been certified in these cases leading to many plaintiffs’ firms becoming experts in the TCPA.

New Mexico
New Mexico has amended its law setting forth penalties for fraudulent telemarketing, HB 80. Knowingly engaging in telemarketing to or from a telephone located in New Mexico with the intent to obtain money by false pretenses in the amount of more than $20,000 is a second degree felony.

New York
A Manhattan based e-mail company has agreed to a $1.1 million settlement for “mining” unauthorized personal data from e-mail messages.

South Carolina
A South Carolina lessor of equipment has sued the entity which provided it equipment which violated the Telephone Consumer Protection Act. In most cases, users of the systems and messages have been left “holding the bag” for marketers who knew their services violated the TCPA. This is the first incidence that I know of where the user of the illegal system sought recompense from the provider. Most providers of illegal services have proven judgment proof which is why the purchasers of the services have been the targets of class actions under the TCPA.

Two Bills have been proposed in the Tennessee Legislature, SB 3111, HB 2787, which would allow commercial subscribers as well as wireless or cellular subscribers to add their telephone numbers to the state “do-not-call” list. It is unlikely that business telephone numbers can be constitutionally added to state or federal “do-not-call” lists.

The Vermont attorney general has reached a settlement with two Canadian telemarketing firms involving a settlement of more than $200,000 based on allegations of illegally processing unsigned checks.

The authors make every attempt to provide current, accurate information, but Telemarketing ConnectionS® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing ConnectionS®. January 1, 2005, Copilevitz & Canter, L.L.C.
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