The FTC has a telemarketing sales rule which requires do not call telemarketer compliance
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DO NOT CALL STATE & FEDERAL REGULATORY NEWS

This newsletter (or material) is prepared by Copilevitz and Canter, LLC, (816) 472-9000, http://copilevitz-canter.com/, braney@cckc-law.com. Copilevitz and Canter, LLC, does not provide legal services to Do Not Call Compliance or donotcallcompliance.com and does not endorse our website or services. This information is not to be used as a substitute for legal counsel.
 
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State Do Not Call
 

July 2009 - Call Compliance News

In this issue:
  • FTC has amended its complaint against a sender of robo-calls.
  • FTC has filed suit against an allegedly bogus mortgage foreclosure prevention program.
  • Verizon and other cell phone companies suing alleged senders of illegal prerecorded telephone messages.
  • TCPA covers text messages and bars them absent the express consent of the recipient.

Federal

FCC
The FCC has issued a notice of apparent liability against One Stop Motors, Inc. alleging willful or repeated violations of the TCPA.  One Stop Motors had already been cited by the FCC in 2007 and, therefore, could be fined.  The FCC assessed forfeiture in the amount of $4,500 in this matter.

The FCC issued a forfeiture order against a mortgage company for violation of the national “do-not-call” list.  The company had first been cited in February 2007 but the company did not respond to the citation.  Following the citation, the Commission received one more complaint and issued a notice of apparent liability forfeiture in the amount of $10,000.

FTC
The FTC has delayed enforcement of the “Red Flags Rule” for another three months until August 1, 2009.  The Rule has restrictions with regard to consumer financial accounts, and you should ensure compliance even if you are not a financial institution.

The FTC has confirmed that it maintains telephone numbers for the purposes of receiving and reviewing inbound telemarketing calls.  A client of mine allegedly violated the TSR based on a call to this number.  I would certainly argue that it was not a business-to-consumer call.

Sears has settled charges with the FTC regarding alleged failure to adequately disclose the scope of consumers’ personal information collected via a downloadable software application.  Under the agreement Sears agreed to destroy information previously collected and advertise clear and prominently the disclosure of types of data the software will monitor, record, and transmit.

The FTC has amended its complaint against a sender of robo-calls.  The agency had previously frozen the assets of the company and obtained a court order enjoining calling.  Prerecorded calls are illegal under federal law unless the consumer has an established business relationship with the caller.  Beginning September 1, 2009, the calls will not be legal without express written signed consent from the recipient of the calls.  Further, even if the prerecorded call is allowed, it still must comply with general restrictions against fraud and other provisions of the Telemarketing Sales Rule and other applicable law.  Given recent political statements on this topic, you can expect the FTC to be active in its enforcement of existing and new provisions of the Telemarketing Sales Rule.  In this case, the FTC obtained a declaration from an employee of the company which stated that it was company practice to disconnect consumers and mask the source of calls.  The employee said he was instructed by supervisors to not divulge the company’s name.

The FTC has filed suit against an allegedly bogus mortgage foreclosure prevention program.  The FTC alleged that the company engaged in misrepresentations regarding its refund policy to consumers and the amount of money the sales people of the program make.

The FTC has obtained a $1.7 million judgment against a payment processor which debited consumers’ bank accounts allegedly without their authorization.

The FTC has entered a consent degree with a mortgage company with regard to allegations that it did not meet FTC standards to safeguard sensitive consumer financial information including name, street, e-mail address, telephone number, social security number, and income, debt, credit and employment history.

TCPA
Verizon and other cell phone companies have become active suing alleged senders of illegal prerecorded telephone messages on behalf of their subscribers.  It is uncertain whether Verizon has a private cause of action under the TCPA in such circumstance.  But, the company obviously made tactical decisions to pursue prerecorded calls it thinks are illegal.

The Ninth Circuit Court of Appeals has ruled that the TCPA covers text messages and bars them absent the express consent of the recipient.  Satterfield v. Simon & Schuster, Inc.  The Court ruled that the FCC was entitled to deference with regard to its decision that the TCPA included text calls within its jurisdiction.  Finally, the court ruled that the consumer’s consent to receive promotional materials from one company did not include other companies which received the lead.

State

ARKANSAS
The Arkansas Attorney General Dustin McDaniel has filed suit against two telemarketing companies alleging that they sent illegal prerecorded calls attempting to sell car warranties.

COLORADO
Colorado’s Governor has signed a bill (AB 1085) which requires all mortgage loan originators to comply with the Telemarketing Sales Rule.

MICHIGAN
Michigan’s House passed legislation which would require automated telephone calls sent to voters to identify the person paying for the call and limits the calls to between the hours of 9:00 a.m. and 8:00 p.m.  Violation of the new provisions would be a misdemeanor punishable by jail time and up to $500 for the first offense, $1,000 for the second offense, and $2,500 for three or more offenses.

NEW JERSEY
The New Jersey Division of Consumers Affairs has proposed a regulation modifying the state’s telemarketing registration law.  Written comments are due by July 31, 2009.  The only change concerns the Division’s ability to use its own “do-not-call” list in the future instead of the federal registry if it so choices.

NEW YORK
The New York General Assembly is considering a bill (AB 8839) which would amend the state’s existing telemarketing law to specifically include calls delivering prerecorded messages to voicemail within the definition of “telemarketing sales call”.  The bill will also impose an 8:00 a.m. to 9:00 p.m. curfew and require prompt disclosure of the purpose of the telephone call and the nature of the goods or services offered.

NORTH CAROLINA
The North Carolina General Assembly is considering a bill (AB 686) which would require every telephone service provider to give notice to consumers at least annually via bill insert, email, or direct mail of the consumer’s ability to opt-out of future solicitations by adding his or her name to the national “do-not-call” list.

WISCONSIN
Wisconsin is considering a bill (AB 307) which would change penalties for violations of its state “do-not-call” list from $100 to not less than $1,000 or more than $10,000 per violation.  The bill would also permit aggrieved individuals to bring an action for injunctive relief and actual damages or $500 per violation, whichever is greater, and attorney’s fees.

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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