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State Do Not Call

May 2006 - Call Compliance News

The FCC has issued a $22,000 fine against a home improvement company for violations of the TCPA’s prohibitions on unsolicited faxes. The FCC assessed the fine based on at least five apparent violations (thus exceeding the amount of money the recipients of the faxes could have received by bringing a private action against the sender of the faxes).

The FCC has also issued a fine of more than $700,000 against a Tennessee company for violation of the TCPA’s unsolicited fax rule. The fine was assessed for more than 98 unsolicited advertisements which continued after the sender of the faxes received a citation from the FCC.

The FTC has filed staff comments on a Hawaii Senate Bill 2200 which would create a children’s do-not-e-mail list. The FTC staff warned that such a registry would provide dangerous persons with a list of children.

The FTC has proposed raising the fee for the national “do-not-call” list again. The maximum fee would now be $17,050.00 per year.

A credit counseling company and related companies have agreed to settle Federal Trade Commission charges that they marketed themselves as a not-for-profit debt counselor but failed to provide personalized credit counseling or interest rate deductions. This settlement involved more than 2.4 million dollars in consumer redress.

The FTC has filed a lawsuit against five online companies alleging that they illegally sold confidential phone records.

An Arizona Court has ruled that TCPA claims can not be assigned to third parties. As you may know, there are several entities operating throughout the which purchase TCPA claims from recipients of facsimiles. This case puts a temporary stop to this practice, at least in , on the grounds that the TCPA claims are privacy claims, rather than economic ones, and it was not Congress’s intent that they be assignable.

A Delaware House Bill, HB 6, would apply existing telemarketing laws (such as “do-not-call” lists) to utility providers such as electric companies.

Kansas has passed a law which repeals a previous state statute which required telecommunication carriers to notify consumers of their rights under the Kansas Consumer Protection Act with regard to telemarketing and the national “do-not-call” list. The law did require telephone companies to provide residential subscribers with the method by which they could register with the national “do-not-call” list, the types of calls consumers would still expect to receive, and what steps they should take if they move or receive a new telephone number. This requirement is now repealed.

A Bill has been proposed in the Louisiana House, HB 1137, which would modify the state’s telemarketing restrictions during times of emergency to allow solicitations at the response of the express request of the person called, in connection with an existing debt or contract which had not yet been completed at the time of the call and calls to established customers (except for automobile sales and sellers). Nonprofit organizations would also be exempt unless they use paid professional solicitors. The Bill also exempts calls constituting political activity.

A Bill in the Michigan House, HB 4423, would amend the state home solicitation sales law to regulate certain telephone solicitations. The Bill would bar misrepresentations, would require disclosure of total purchase prize, goods or services to be received, restrictions and limitations on the offer, material terms of the seller’s refund policy, and material costs or conditions related to prizes among other items. The Bill would also specifically bar misrepresentations regarding whether the consumer has a current business relationship with the caller. The Bill would allow a private cause of action for actual damages of $250.00 per violation, plus a reasonable attorney’s fee.

New York
A court has found that a prerecorded telephone message left on a consumer’s answering machine was a communication in connection with the collection of a debt. Federal law requires that communication subsequent to initial communications with the consumer disclose that the communication is from a debt collector. This case is one more example of how “topic specific” telephone calls can be subject to additional restrictions in both federal and state law. Telemarketing laws are not the only source of applicable disclosures and other behavioral restrictions for calling activities. Foti v. NCO Financial Systems, Inc.

A Bill, AB 11141, has been proposed in the New York General Assembly which would amend the state’s “do-not-call” list law to require access to the Federal “do-not-call” list no more than thirty-one (31) days prior to the date of any telemarketing call. Previously, the New York law only required quarterly access to the federal list.

North Dakota
The North Dakota Supreme Court has ruled that its state law regarding prerecorded telephone calls was not preempted by the TCPA. State of North Dakota v. North Dakota statute is more restrictive than the TCPA, but the Court ruled that state law could apply to interstate calls. This is in direct conflict with the recent case in California , as well as the legislative history of the TCPA (in my opinion).

A Pennsylvania Senate Bill, SB 713, would bar calls to mobile telephone numbers without express consent. The Bill would allow verbal or written consent.

Vermont has passed a law, HB 248, which would modify the state’s registration of lobbyist rules to require disclosure of expenses incurred by lobbyist in telemarketing, polling, or similar activities.

West Virginia
West Virginia will now require an affidavit for companies requesting limited exemption status under the state telemarketing statute. Previously, the state had accepted a letter from a company employee that the company met the time and business percentage requirements for this exemption.

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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