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State Do Not Call

April-May, 2009

In this issue:
  •     The FCC issued a forfeiture order against a mortgage lending corporation in the amount of $18,000 for alleged violations of the TCPA.
  •     FTC v.Stefanchik, et al ruling that a telemarketer made deceptive and false claims when marketing a program concerning mortgage sales.
  •     FTC settlement with DirecTV which paid a penalty of $2.31 million for calling consumers who made company specific ‘do-not-call’ requests.


The FCC issued a forfeiture order against a mortgage lending corporation in the amount of $18,000 for alleged violations of the TCPA. The company had argued that it had an established business relationship with the persons to whom it sent prerecorded messages, but the FCC disagreed.

An appellate court has ruled that a telemarketer made deceptive and false claims when marketing a program concerning mortgage sales. FTC v. Stefanchik, et al. The FTC alleged general violations of the FTC Act and violations of the Telemarketing Sales Rule for misrepresentations made in telephone presentations. The FTC argued that contrary to the defendants’ claims, it was very difficult for individuals to amass wealth using their services. The court found the defendants liable for more than 17 million dollars in damages.

The FTC has sued Dish Network over alleged violations of the national ‘do-not-call’ registry. The FTC had received more complaints about Dish Network than any other company, and Dish Network is the first accused company which has not settled ‘do-not-call’ violations. The complaint also alleges that Dish Network’s dealers made illegal prerecorded calls to consumers.

The FTC has entered a settlement with DirecTV and a service provider settling charges that the entities violated the ‘do-not-call’ provisions of the Telemarketing Sales Rule. DirecTV paid a penalty of $2.31 million. The FTC alleged that the companies called consumers who made company specific ‘do-not-call’ requests.

The FTC and Kentucky’s Attorney General filed a complaint alleging a group of companies and their owners violated the Telemarketing Sales Rule and FTC Act by falsely offering consumers free goods or services. The settlement permanently barred the defendants from telemarketing or assisting others in telemarketing unless they obtain a five million dollar performance bond. The settlement also involved a monetary judgment of more than 15 million dollars. All but $1.3 million was suspended based on inability to pay.


The Alaska House unanimously passed HB 93 which adds calls to wireless numbers to those calls regulated by the state’s telemarketing law.

The appellate court affirmed certification of a TCPA class of persons who received allegedly illegal faxes. The court indicated that it will consider whether the TCPA allows class actions in Florida but did not address the issue in this decision. Guy’s World, Inc. v. Condon.

A plaintiff’s TCPA lawsuit was dismissed by a court based on a prior release the plaintiff signed releasing all entities associated with prior calls. The plaintiffs had received over 700 unsolicited fax advertisements.

The Missouri Senate is considering a bill which would amend the state ‘do-not-call’ list to include personal cell phone numbers. The bill would also prohibit prerecorded telephone calls to individuals on the ‘do-not-call’ list unless they have given permission to receive the call or have a current or recent established business relationship with the caller. Political calls would also be required to include a ‘paid by’ statement.

New York
A bill has been introduced in the New York General Assembly (AB 7563) which would amend the state’s telemarketing law to add prerecorded messages and calls received by voice mail or answering machine services to the definition of ‘telemarketing’ in the statute. The bill would also require a prompt disclosure of the name of the telemarketer and the person on whose behalf the solicitation is being made, the purpose of the telephone call, the identity of the goods or services, and the cost of goods or services that are subject to the telephone call. These restrictions largely mirror those found in the Telemarketing Sales Rule.

The New York General Assembly has appropriated $400,000 to fund enforcement of the telemarketing laws in the coming fiscal year.

A plaintiff travel agency won a lawsuit against a cruise company for TCPA violations based on unsolicited fax advertisements. The court held that established business relationship was not sufficient to allow fax advertisements under federal law. The court ruled that the FCC’s interpretation of the statute allowing an established business relationship in the past was also incorrect.

North Carolina
A bill has been proposed in the North Carolina General Assembly (HB 686) which would require local telephone companies to notify telephone subscribers regarding the existence of the ‘do-not-call’ registry and how consumers can register to be on that list.

The Oklahoma Senate is considering a bill (SB 413) which would amend the state’s telemarketing law to include business-to-business calls. If
passed, business-to-business callers would be subject to the state's registration statute, unless otherwise exempt.

The Sixth Circuit Court of Appeals has ruled that a private plaintiff under the TCPA could recover damages only ‘per call’ rather than per alleged violation. Charvat v. GVN Michigan. This is a high level appeals court and the opinion will carry great weight in other jurisdictions with regard to private TCPA claims. Plaintiffs often allege damages of
thousands of dollars for a single call, when Congress contemplated $500 per call in damages which can be trebled for knowing or willful violation.

The Pennsylvania House is considering a bill (HB 1227) which would add political calls to the definition of ‘telephone solicitation call’ subject to registration requirements in the Commonwealth.

West Virginia
In a lawsuit against a telemarketer, the West Virginia attorney general stated that there have been only three prosecutions under the telemarketing registration law in that state.

A telemarketer argued that it was not subject to the registration requirement in the state based on the federal commerce clause and the fact that the telemarketer engaged only in interstate commerce. The court disagreed and held that the registration requirement was not an undue burden on interstate commerce.

A bill to eliminate Washington’s telemarketing registration requirement (SB 6037) has passed the Senate and has been the subject of a public hearing in the House. The bill was sponsored by Washington’s governor.
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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