February-March 2009 - Call Compliance News
The FTC has issued a notice announcing that it will review its Telemarketing Sales Rule regulations in 2013 pursuant to a 10 year schedule to review all its regulations. New TSR restrictions on prerecorded calls go into effect September 1.
A U.S. District Court has struck down the FCC’s established business relationship exemption for unsolicited faxes sent prior to 2005 (Goetlieb v.Carnival Corporation). The FCC had ruled in an Order that the faxes sent to established customers were, in effect, sent with the express consent of the recipient. This court retroactively struck down that exemption and may assess the sender of faxes substantial fines. This case may be overturned on appeal.
The California Assembly is considering a bill (AB 792) which would require entities requesting consumers to opt -in to calls via mail solicitations disclose the telephone number or numbers to which calls will be placed.
The California Senate is considering a bill (SB 437) which would ban telephone companies from selling to residential subscribers assigned unlisted or unpublished numbers.
A Colorado court of appeals has ordered attorney’s fees against a company created to file Telephone Consumer Protection Act cases. US Fax Law Center, Inc. v. Henry Schein, Inc. An earlier Colorado court ruled that TCPA claims are not assignable in Colorado, and this Court awarded defendant’s attorneys’ fees against the company. The appellate court upheld the award of attorneys’ fees.
A bill has been proposed in the Florida Senate (SB 1132) which would require credit counseling organizations to register annually with the state plus pay a fee and post a bond. The Office of Financial Regulation would also be authorized to issue regulations implementing the law.
A Florida Senate bill (SB 1324) would establish a “do-not-mail” state registry if people do not wish to receive direct mail marketing solicitations.
A bill has been proposed in the Georgia House (HB 275) which would add text messages to those regulated by the state’s ban on unsolicited faxes.
A bill has been proposed in the Kansas House (HB 2217) which would require that calls made by a candidate or political committee make certain disclosures and end the telephone call if the consumer gives a “negative response”.
A bill has been proposed in the Kentucky House (HB 18) which would regulate prerecorded political telephone calls.
A Nebraska Legislative bill (LB 720) went into effect on January 1, 2009 imposing a disclosure requirement on prerecorded calls as well as a curfew between the hours of 8:00 a.m. and 9:00 p.m.
A bill has been proposed in the New York General Assembly (AB 4157) which would allow persons to add their fax number to the state “do-not-call” registry.
Although state and federal law do not contain frequency restrictions with regard to the number of times a given number can be dialed, you should be aware that consumers sometimes complain when dialers call their numbers repeatedly (and the call is registered on caller ID or otherwise). Although telemarketing laws do not contain frequency restrictions, at some point a regulator or consumer can argue that the number of attempts is abusive or harassing. I recently dealt with complaints in the state of North Dakota from two consumers who were called more than 10 times in a day without answering and state consumer protection authorities objected to this level of attempts. This matter shows the importance of minimizing consumer complaints, even if no specific law bars a given practice.
A United States court in Ohio has dismissed a TCPA case against a Texas corporation. The court ruled that “technical” violations alleged in the calls were not enforceable by private action. The private plaintiff could only seek damages for illegal telephone calls, not allegedly illegal “violations” within the calls. The court, therefore, dismissed the case because it did not meet the jurisdictional requirement of federal court. This is an important case in that private plaintiff’s often attempt to increase the value of a suit under the TCPA from the $500 per call amount by adding numerous other violations for which they claim damages. I have had private plaintiffs seek more than $20,000 from a single call, when the maximum allowed under the TCPA is $500 per call or $1,500 if the violation is willful or knowing. Burdga v. Association Health Care Management.
A bill has been proposed in the Oklahoma Senate (SB 504) which would amend the Telemarketer Registration Act to specifically exclude businesses and nonprofit corporations from the definition of “consumer”, thus exempting marketing calls to these entities from the scope of Oklahoma’s law.
Another bill has been proposed in Oklahoma (SB 833) which would bar all telemarketing sales calls on Sunday.
A bill has been proposed in the Pennsylvania House (HB 159) which would apply the state’s telemarketing law to solicitations on behalf of a nonprofit if the solicitation was made by a for-profit fundraiser and not by “in house” employees.
A federal court in Pennsylvania has allowed a TCPA class action to proceed against a sender of allegedly illegal faxes. The defendant argued that the case should be heard in state court, only, but the court disagreed.
A bill has been proposed in the Washington Senate (SB 5210) which would bar telemarketing sellers from billing or attempting to charge persons for unsolicited goods or services.
A bill has been proposed in the Washington Senate (SB 6037) which would eliminate Washington’s registration requirement for commercial telephone solicitors. Before this, states have generally resisted efforts to end duplicative regulations (e.g. state and federal “do-not-call” lists). We will carefully track the progress of this bill.