November 2009 - Call Compliance News
In this issue:
- The FTC has extended the enforcement deadline for its red flags rule through June 1, 2010 at the request of members of Congress.
- A bill has been pre-filed in the Florida Senate (SB 332) which would change the state’s law governing debt negotiation.
- New York has passed a new law (AB 1627), effective November 16, 2009, which would prohibit any false, deceptive, or misleading statement regarding a seller’s affiliation with a consumer’s current auto warranty company or other information regarding the consumer’s auto warranty.
An individual has pled guilty to four counts of fraud involving as much as $75,000,000. According to the indictment, the business model was designed to bill businesses for internet related services without their knowledge or authorization. Services were billed on local telephone bills. The individual faces a maximum penalty of 46 years in prison with a maximum fine of $1,000,000.
The FTC has issued an opinion letter allowing a business which uses prerecorded responses interspersed in a live presentation to continue to do business and confirmed that it was not subject to the new restrictions on prerecorded (only) calls. Call Assistant Letter, September 11, 2009.
The FTC has extended the enforcement deadline for its red flags rule through June 1, 2010 at the request of members of Congress. Please contact me if you have questions regarding the effect of the new rule.
The comment period for changes in the Telemarketing Sales Rule regarding debt relief restrictions has ended. The FCC will likely issue final regulations on debt relief solicitations pursuant to the Telemarketing Sales Rule in the near future.
The FTC has issued a request for comments before November 30, 2009 regarding the availability of free credit reports. According to the FTC, since the implementation of the rule allowing consumers to obtain free credit reports, there has been a “proliferation of confusing advertising” regarding this issue and the FTC is proposing regulations regarding this advertising including disclosures. If you have marketing campaigns regarding credit reports, you likely should review the proposal and comment before the end of the period.
The FTC has asked a federal court to issue a contempt order against Blue Hippo alleging that the company collected more than $15,000,000 from consumers but did not deliver the financed computers in violation of a 2008 court order. Blue Hippo had previously settled with the FTC for $3,500,000 in 2008.
A Florida court dismissed a TCPA claim regarding a debt collection call. Pollock v. Bay Area Credit Services, LLC. The court ruled that even though the consumer had provided her cell phone number to the original creditor, there was an issue about whether this constituted “express consent” and therefore the court denied the summary judgment claim. The TCPA claim will proceed to trial.
A bill has been pre-filed in the Florida Senate (SB 332) which would change the state’s law governing debt negotiation. The bill would add an exemption for persons licensed to practice law in the State of Florida and would require registration for debt negotiation organizations doing business in the state. The registration, with the Office of Financial Regulation, would require an annual fee of $2,500 and would not be issued if a judgment had been made against the organization under Florida’s Deceptive or Unfair Trade Practices Act. The bill would also ban certain practices and require that the debt negotiation organization maintain insurance in an amount not less than $100,000.
An Illinois court has dismissed a purported TCPA class action against a chiropractor who sent informational faxes to a law firm regarding the care and treatment of various medical disorders. Both sides produced affidavits, the plaintiff swearing she did not give permission to receive these informational faxes, while defendant produced an affidavit that plaintiff had given such permission. “The court concludes that somebody is lying.” The court, therefore, scheduled a hearing with both affiants with regard to potential sanctions for such behavior.
The Michigan Senate has enacted a change to its home solicitation law (SB 701) to implement parts of the new Uniform Securities Act. The change will have no effect on telemarketing or home solicitation sales not subject to that Act.
New York has passed a new law (AB 1627), effective November 16, 2009, which would prohibit any false, deceptive, or misleading statement regarding a seller’s affiliation with a consumer’s current auto warranty company or other information regarding the consumer’s auto warranty. The law provides for injunctive relief and civil penalties of $500 for each violation or $1000 if the court finds that the defendant knowingly violated the law. The bill also prohibits misrepresentations regarding the seller’s possession of information regarding the consumer’s vehicle warranty.
In an FDCPA case, the State of New York noted that if a consumer provides his or her cellular telephone number to a business in an application, the TCPA would permit recorded or autodialed telephone calls to that number. Bates v. I.C. System, Inc.
In a case involving prerecorded telephone calls allegedly illegal under the TCPA (Applestein v. Fairfield Resorts, Inc.) a trial court denied class certification. The appeals court ruled that the trial court did not abuse its discretion on the decision that the TCPA allows individuals the means to enforce laws against illegal telephone calls and justice was best served through non class proceedings.
A New Jersey court has granted summary judgment in favor of the defendant whom the plaintiff alleged illegally faxed it an invitation to participate in a class action for illegal faxes. The court held that the TCPA claim could only be brought in state court and therefore dismissed the suit.
The Pennsylvania House is considering a modification to the state’s telemarketing law which would require registration for persons using prerecorded political calls (HB 1877). The bill would also create a “do-not-call” list for automated political calls.
Tennessee has adopted new rules regulating automatic dialing announcing devices (effective January 20, 2010). The new rules will require a permit for ADAD use with a fee of $100 and a bond of $10,000.
The Ninth Circuit Court of Appeals in Washington will hear arguments regarding whether Washington’s prerecorded telephone call law is preempted by the TCPA (i.e. it does not apply to interstate calls received in the state). The lower court ruled that state law was preempted.