May-June 2008 - Call Compliance News
The FCC has published a summary of its rules and revisions pursuant to the TCPA. Currently, no proposed changes in the regulatory regime are on the FCC’s agenda.
The FTC has issued a letter to a major subprime mortgage company closing an investigation regarding a data breach of that company’s stored consumer information. The company promptly notified consumers of the breach, but the FTC took into account the company’s overall data security practices, response to data breach, and responsiveness to the FTC’s investigation in closing the investigation without a fine. The FTC letter noted that it would expect companies to take sufficient steps to protect data even from inside “rogue” employees.
The FTC announced 13 lawsuits against allegedly deceptive telemarketers filed on May 20, 2008. The operation dubbed “Tele-PHONEY” included actions against a variety of domestic and international telemarketers. Common to most of the claims was failure to promptly offer refunds, deceptive representations regarding what was offered, and targeting elderly or otherwise vulnerable consumers.
The FTC’s new affiliate marketing rule goes into effect on October 1, 2008. If your business shares consumer information with affiliates or receives such information from your affiliates for marketing purposes, you should immediately review this rule and compliance with it. It is not retroactive regarding data received prior to the October implementation date, but prospectively will affect how you share data with organizations affiliated with you.
The FTC will implement new CAN-SPAM rules effective July 7th. These rules will clarify that CAN-SPAM applies to all persons, including corporations that receive commercial electronic e-mail. Additionally, e-mails which are sent by multiple entities can now be designated to come from one “sender” if compliant with the rule. Please contact me if you have questions regarding the new CAN-SPAM rule.
U.S. Supreme Court
The U.S. Supreme Court has denied my client’s Petition for Certiorari to the Florida Supreme Court with regard to the issue of preemption of state law by federal law with regard to interstate calls. Until the FCC or Congress resolves this matter, the question of preemption by the TCPA will remain unresolved. There are cases on both sides of this issue depending on your jurisdiction.
A California district court has rejected the FCC’s standard for “prior express consent”, ruling that a consumer providing a number to a business and not making instructions to the contrary does not constitute “prior express consent” to receive calls to that cell phone number. This case likely will be appealed.
An appeals court in Colorado has upheld a trial court’s ruling that TCPA claims are not assignable in Colorado. The plaintiff purchased the right to prosecute a sender of unsolicited faxes. The trial court and the appeal court ruled that such claims are not assignable in Colorado.
Georgia’s telemarketing law has been amended to include sales of securities within those telephone calls regulated by Georgia’s telemarketing law, banning deceptive, fraudulent, or abusive practices.
An Illinois court has denied a motion to certify a class of plaintiffs against a bank which faxed advertisements to businesses in several states. The court ruled that the plaintiffs failed to specify that the class was limited to those entities which did not consent to receive the faxes and therefore denied the class certification.
Another Illinois court has ruled that the TCPA’s ban on unsolicited faxes did not violate the First Amendment. The court held that businesses had a substantial interest in the costs of receiving unsolicited faxes. The court ruled that this restriction on commercial speech was not broader than necessary to protect this interest and therefore the TCPA was constitutional.
The Missouri Attorney General has become increasingly aggressive with regard to enforcement of Missouri’s “do-not-call” list. You should review compliance with federal and state “do-not-call” lists especially in states which maintain their own “do-not-call” list and/or have differing established business relationship periods or other differences from the federal standard. Missouri has also been aggressive with regard to interpretation of the exemptions to the Missouri “do-not-call” list, bringing suit against nonprofits even though donation calls are exempt from the Missouri list.
Nevada Supreme Court has ruled that state courts in Nevada can hear TCPA claims if those claims otherwise comply with Nevada Rules of Civil Procedure. The Supreme Court ruled that a separate statute or “rule” authorizing TCPA claims in state court was not necessary to confer jurisdiction.
A rule has been proposed in New Jersey which would require telemarketers to disclose their outgoing call capacity as part of the application for registration as a telemarketer. New Jersey bases its fee for registration on the number of outbound telephone lines a telemarketer uses.
The state of Ohio has filed suit against a credit card payment processor company alleging that it normally provided services to telemarketers who were violating the National Do-Not-Call Registry and fraudulently charged consumers fees. The suit also alleged that the telemarketers were not registered to solicit in Ohio.
The Ohio Attorney General has also filed suit against a major corporation alleging that it failed to register in the state of Ohio and then charged consumers’ bank accounts without proper confirmation.
The Ohio Attorney General has filed a third action against a Canadian company alleging failure to register and improper charging of consumers’ accounts.
Vermont has amended its telemarketing statute to require that telemarketers who debit consumers’ depository accounts record the entire telemarketing call and maintain such recorded authorizations for a period of at least four years. The law also requires that the telemarketer include a description of specific goods or services offered and the material terms of the transaction, among other items, in the oral authorization. This recording requirement exceeds that required by the Telemarketing Sales Rule.