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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
 

January, 2010 - Call Compliance News

In this issue:

  • The FTC has announced a major law enforcement effort targeting telemarketers who violate the “do-not-call” rule or rules barring prerecorded calls to consumers.

  • Two bills have been introduced in the Mississippi House related to Mississippi’s Telephone Communications Act.

  • The Missouri Senate is considering a bill (SB 633) which would ban prerecorded telephone calls, including political calls to persons on the Missouri “do-not-call” lists.

Federal

FTC

Federal Court has ruled that the TSR does not provide for “strict liability” for violations of the “do-not-call” restrictions based on the “good faith” safe harbor included in the Rule. United States v. Dish Network, L.L.C. At times, the FTC has argued for strict liability. 

Congress is currently considering legislation (HR 3126) which would expand the FTC’s power to issue informal rulings banning specific acts or practices which it considers unfair and deceptive.  Currently, the Commission may develop trade regulations only through the rule-making process, requiring notice, comments, etc.

The FTC has announced a major law enforcement effort targeting telemarketers who violate the “do-not-call” rule or rules barring prerecorded calls to consumers.  The FTC filed three complaints in Court in early December against Economic Relief Technologies, LLC, Dynamic Financial Group USA, Inc., and JPM Accelerated Services alleging deceptive prerecorded calls which represented the ability to lower consumers’ interest rates on credit cards.  The FTC alleged that these representations were deceptive and that later live telemarketers also made misrepresentations to consumers.  Also involved in the allegations were deceptive marketing of car warranty programs.

The FTC has issued business guidance regarding prerecorded telephone calls which can be reviewed at http://www.ftc.gov/bcp/edu/pubs/business/alerts/alt161.shtm.  Another FTC consumer alert makes clear that even messages sent with the express written consent of the consumer still must contain the opt-out disclosure. http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt162.shtm

State

Illinois

An Illinois court has ruled that a sender of SMS messages was subject to the TCPA.  The court upheld the constitutionality of the TCPA but dismissed Plaintiff’s class action because Plaintiff had failed to allege that he was charged for the SMS message that he received.

An Illinois court has ruled that a sender of unsolicited faxes could be liable for conversion, i.e. taking the recipients resources without permission.  The court also ruled that unsolicited faxes could constitute an unfair practice under Illinois’ consumer protection laws.

Kentucky

A bill has been proposed in Kentucky (BR 439) which would amend Kentucky’s Telephone Solicitation Act to specifically assign enforcement of the law to the Division of Consumer Protection of the Office of the Attorney General.

Mississippi

Two bills have been introduced in the Mississippi House related to Mississippi’s Telephone Communications Act.  The first bill (HB 181) would extend the repeal date of the law through July 1, 2013.  It had been scheduled to expire July 1, 2010.  The bill’s scheduled repeal has been extended at least twice, and it is unlikely that Mississippi’s Telephone Solicitation Act will be repealed in the near future.

The second bill (HB 292) would add facsimile communications to the types of calls barred on the Mississippi “do-not-call” list.  Unsolicited faxes are already banned by federal law, but this bill would require senders of faxes to review exemption to Mississippi law as well as federal law.  Mississippi’s established business relationship period is only six months from the date of a purchase, which differs from the federal 18 month period.

Missouri

The Missouri Senate is considering a bill (SB 633) which would ban prerecorded telephone calls, including political calls to persons on the Missouri “do-not-call” lists.

The Missouri House is considering two bills.  The first (HB 1253) would include live or prerecorded political calls in the definition of “telephone solicitation” such that these calls would be banned if placed to persons on the Missouri “do-not-call” list.  The second (HB 1325) would ban all prerecorded calls to persons on the list except for calls placed with the express consent of the recipient or from school districts, employers regarding work schedules, or businesses with whom the consumer had contact within the past 180 days.

A California-based telemarketing company (Credexx Corp.) will pay a $75,000 fine to Missouri to settle allegations of illegal calls to Missouri residents on the state “do-not-call” list.  The company was doing business as Auto One Warranty Specialists and placed prerecorded telephone calls to consumers offering to sale the company’s automobile warranty products.

New Jersey

The New Jersey General Assembly is considering a bill (AB 801) which would create a do-not-solicit list for credit card solicitations.  If passed, it would join Texas as the only state with a subject-specific no-solicitation list (Texas’ law is for utility solicitations).

Ohio

A court has granted EchoStar Satellite summary judgment against Phillip Charvat.  Charvat had alleged that EchoStar, through agents, placed more than 30 illegal telephone calls to him offering to sale Dish Network programming.  The court ruled that EchoStar did not directly control its resellers who were acting as independent agents.  Charvat has now lost multiple TCPA cases of great importance.  This should cut down on some of the abusive practices which have been used in the past by “professional” plaintiffs.

Tennessee

Tennessee has delayed implementation of its registration requirement for automatic dialing announcing devices.  The rule had been set to go into effect on January 20, 2010 and no new effective date for the registration requirement has been determined.

Washington

The Washington federal court has ruled that the TCPA does not preempt Washington State’s automatic dialing announcing device statute.  Palmer v. Sprint Nextel Corp. Because a California court (in the same federal circuit) has ruled differently, the Ninth Circuit will now likely resolve the conflict between the courts on this issue.

Wisconsin

The Wisconsin General Assembly is considering a bill (AB 246) which would ban all solicitation calls to persons on the Wisconsin “do-not-call” list.  These calls are already prohibited by federal law.

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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