November 2007 - Call Compliance News
The FCC has issued a Notice of Forfeiture in the amount of $13,500 against a roofer which allegedly sent unsolicited telephone facsimile advertisements. The Notice of Forfeiture follows a Citation. The FCC normally can not assess penalties without first citing the offending entity. If you receive a FCC Citation, however, you should treat it seriously and respond in a timely fashion with defenses against the FCC’s allegations. Normally, the FCC does not conduct independent fact finding prior to issuing a Citation when it receives a consumer complaint regarding the TCPA. It is thus very important to review the complaint underlying the Citation to determine if it is actually a valid violation of the TCPA or its regulations. If it is not, you should immediately contact the FCC to arrange a hearing and the Citation is time sensitive and becomes final if that hearing is not scheduled (even if the underlying complaint is not valid).
A Texas based debt collection company will pay more than $1.3 million to settle FTC allegations that it violated the Fair Debt Collection Practices Act. The debt collector allegedly disclosed the existence of debts to family members and coworkers and harassed consumers using abusive tactics including racial slurs and profanity. The settlement also requires defendants to clearly and conspicuously disclose consumers’ FDCPA rights in future collection activity. The FDCPA can be enforced by private plaintiffs and government regulators and is often used in class action litigation against debt collectors.
The FTC has created a consumer hotline for consumers who purchased debt reduction services from five entities which allegedly falsely claimed that they would negotiate with creditors and begin paying creditors on behalf of consumers. The FTC has shut down all five companies through court action. Services which represent an ability to improve a consumer’s credit rating, or reduce debt to credit card companies, have been an area of high FTC enforcement over the past 4 years.
The FTC has published its Consumer Fraud Survey. The top ten frauds in the past year included fraudulent weight loss products, foreign lottery scams, and prize promotions. Telemarketing was the least frequently used medium for these alleged frauds (print advertising and the internet were the most commonly used media).
The FTC won a final judgment against a Canadian telemarketer involving a penalty of more than $10 million. The defendants allegedly falsely offered major credit cards to people who agreed to have their bank accounts debited an advance fee. The Telemarketing Sales Rule contains specific restrictions against advance fee credit cards as well as general prohibitions on misrepresentations and deception. There is no exemption in the Telemarketing Sales Rule for international calls.
The FTC approved a final rule on affiliate marketing that will provide consumers with an opportunity to “opt out” before a person or company uses information provided by an affiliated company to market products or services to the consumer. The final rule will become effective January 1, 2008 and covered entities must comply with the rule no later than October 1, 2008. Please contact me if you would like additional information about the new affiliate marketing rules.
FTC Press Conference
The FTC has announced six settlements related to national “do-not-call” list violations imposing nearly $7.7 million in penalties along with consent orders.
A California appellate court has ruled that a plaintiff could not prove the defendant in a TCPA case actually sent the facsimiles to him. Although the fax pages advertised products offered by the defendant, plaintiff could produce no evidence that the defendant actually sent the faxes to him. Similar questions often arise with regard to independent marketers who sell a given business’s products. This case may be an important weapon to prevent “vicarious liability” for the business which may have done nothing wrong.
A Connecticut bill (SB 157) has been proposed which would regulate prerecorded calls on behalf of political candidates and apply other restrictions to prerecorded calls sent by other entities, but would allow prerecorded calls to consumers who have a current business relationship with the caller. There is legislation before the U.S. Congress in the same area, but with different provisions. I think you can expect the U.S. Congress to act with regard to prerecorded political calls this legislative session.
An Illinois court has ruled that a debt collector which advertised its services via unsolicited faxes was liable and the plaintiffs could pursue successor organizations to the entity which originally sent the faxes.
An Illinois appellate court has ruled that business owners who received allegedly illegal faxes could not be certified as a class in their suit against the sender. The trial court had ruled that a recipient consent to receive the fax transmission was not a “common issue” to the class and also that, in the trial court’s opinion, Congress had enacted the TCPA for individual actions, not private class actions with potential recoveries in the millions of dollars.
The State of Missouri, through its attorney general, has sued an entity alleging violations of the TCPA. The TCPA normally is enforced by individual plaintiffs or the FCC, but states are entitled to enforce its terms if the attorney general has reason to believe that an entity has violated the law or its regulations.
A federal court in New York has ruled that a doctor could not bring a class action under the TCPA in the state of New York based on state rules which prohibit class actions involving statutes with set monetary penalties.
A Pennsylvania bill has been introduced in the Senate (SB 1116) which would eliminate the five year expiration period for a consumer “do-not-call” request. Telephone numbers would remain on the list until no longer valid for that residential or wireless telephone subscriber. This same issue is being debated at the federal level.
A Virginia court has ruled in favor of an insurance company which denied coverage to a bank for TCPA class action liability. Because the policy expressly excluded liability for invasions of privacy, and the TCPA is based on protection of consumer privacy, the court ruled that the insurer had no duty to defend the bank. Court decisions regarding insurance coverage for TCPA actions have ruled both ways, likely dependent on the language of each insurance policy.