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State Do Not Call

October-November 2010 - Call Compliance News

<p>In this issue:</p>
    <li>The Federal Communications Commission has issued a notice of  apparent liability for forfeiture against Presidential Who&rsquo;s Who, Inc.  alleging at least 73 unsolicited advertisements using facsimile machines  were sent in violation of the TCPA.</li>
    <li>The FTC has announced the mailing of $5.7 million in reimbursement  checks to consumers who were marketed an allegedly &ldquo;free&rdquo; trial  membership in programs via telemarketing calls.</li>
    <li>The FTC has opened a business center at <a href="" title=""></a> attempting to provide businesses compliance tools with regard to applicable FTC law.</li>
<hr />
<p>FEDERAL<br /> <b>FCC</b><br /> The Federal Communications Commission has issued a notice of apparent  liability for forfeiture against Presidential Who&rsquo;s Who, Inc. alleging  at least 73 unsolicited advertisements using facsimile machines were  sent in violation of the TCPA.&nbsp; The FCC found liability in the amount of  $345,000.&nbsp; The sender of the faxes claimed that they were not  advertisements.&nbsp; The FCC found that despite the sender&rsquo;s claim that the  faxes were merely a request for information for people to include their  information to the publication free of charge, the faxes in question  were a pretext to advertise a commercial product or service.&nbsp; The notice  of apparent liability is an important discussion of offers of &ldquo;free&rdquo;  services (and presumably other regulators) will consider them to be  marketing calls if part of a campaign to later sell goods or services.</p>
<p>The FCC has issued another notice of apparent liability against Clean  Credit, Inc. alleging willful violations of the TCPA&rsquo;s restrictions on  sending unsolicited faxes and finding forfeiture in the amount of  $528,000.&nbsp; The Commission had taken three previous actions against the  sender finding liability of more than $100,000 in 2008.</p>
<p><b>FTC</b><br /> The FTC has proposed rules regulating mortgage advertising which would  apply to telemarketing scripts as well as training materials used by  telemarketing agencies.&nbsp; Mortgage marketers would be required to keep  records for a period of 24 months from the date of last use for all  commercial communications including such scripts and training  materials.&nbsp; The rules would also prohibit material misrepresentations  expressly or by implication in any commercial communication. 75 Fed.  Reg. 60352 (Sept. 30, 2010) .</p>
<p>The FTC has obtained a restraining order permanently closing a  company which allegedly placed unauthorized charges on telephone bills.&nbsp;  <i>FTC v. Corp.</i>&nbsp; The judge found violations of the  Telemarketing Sales Rule including misrepresentations that calls were  placed to businesses only to verify information when the calls actually  were intended to create monthly charges on the business&rsquo; telephone bill.</p>
<p>The FTC has announced the mailing of $5.7 million in reimbursement  checks to consumers who were marketed an allegedly &ldquo;free&rdquo; trial  membership in programs via telemarketing calls.</p>
<p>At the request of the Federal Trade Commission, a federal court has  issued a judgment against a payment processor which allegedly provided  services to deceptive telemarketers in the amount of $3.6 million.&nbsp; This  is an example of the &ldquo;accomplice liability&rdquo; standard found in the  Telemarketing Sales Rule applicable if a business knows, has reason to  know, or consciously avoids knowing of activity violating the  Telemarketing Sales Rule conducted by its business partners and  continues to provide services to those partners.&nbsp; <i>FTC v. Your Money Access, LLC</i></p>
<p>The FTC has opened a business center at <a href="" title=""></a> attempting to provide businesses compliance tools with regard to applicable FTC law.</p>
<p>The FTC has mailed redress checks totaling $1.2 million to consumers  who allegedly were defrauded by a debt reduction company.&nbsp; The average  amount of payment is about $180 per consumer.</p>
<p>A debt collector will pay a penalty of $1.75 million for allegedly  making repeated telephone calls to collect from the wrong person, the  wrong amount, or both.&nbsp; This settlement is the second largest civil  penalty obtained by the FTC in a debt collection case.&nbsp; <i>United States of America v. Allied Interstate, Inc.</i></p>
<p>STATE<br /> <b>Florida</b><br /> In another TCPA debt collection case, a Florida court declined to  exercise jurisdiction over a TCPA claim when the plaintiff failed to  allege damages sufficient to meet federal jurisdiction requirements.&nbsp; <i>Sclafani v. BC Services</i>.</p>
<p><b>Illinois</b><br /> An Illinois court has allowed a TCPA fax claim by a dentist to continue  despite the defendant&rsquo;s allegation that there was an established  business relationship between the sender and recipient of the fax.&nbsp; <i>Garrett v. Sharps Compliance, Inc.</i>&nbsp; The case may be dismissed after additional discovery.</p>
<p><b>Kentucky</b><br /> A bill has been proposed in the Kentucky House (<i>HB 43</i>) which  would require a full statement of all limitations and restrictions  applicable to any property, product, or service for sale.&nbsp; All  commercial speech restrictions are less than those applicable to fully  protected speech.&nbsp; It is likely that such a broad &ldquo;forced speech&rdquo;  requirement would run afoul the United States Constitution.</p>
<p><b>Louisiana</b><br /> An appeal&rsquo;s court from the fifth circuit has ruled in favor of a business and against class certification in a TCPA case.&nbsp; <i>Gene &amp; Gene LLC v. Biopay, LLC</i>.&nbsp; The court ruled that consent could not be answered on a class-wide basis.</p>
<p><b>Minnesota</b><br /> In Minnesota, a federal court has ruled that a debt collector did not  have express consent to place an automated call to a consumer based on  purchase of that consumer&rsquo;s debt.&nbsp; The FCC standard for express consent  requires more and users of automated telephone dialing systems or  prerecorded message campaigns need to comply with the FCC standards.</p>
<p><b>Ohio</b><br /> An Ohio federal court has dismissed a private plaintiff&rsquo;s claim against a telemarketer (<i>Charvat v. NMP, LLC</i>)  holding that live telemarketing calls can only create one &ldquo;violation&rdquo;  per call.&nbsp; The court ruled that automated calls were subject to the same  limitation, i.e. one &ldquo;violation&rdquo; per automated call.</p>
<p><b>South Carolina</b><br /> The campaign manager for the republican candidate for South Carolina&rsquo;s  lieutenant governor position has made arrangements to surrender to South  Carolina authorities after allegedly violating the State&rsquo;s ban on  unsolicited prerecorded telephone calls.&nbsp; I have not heard of this  statute being enforced before, but unsolicited political calls are  illegal under South Carolina law unless the caller has an established  business relationship with the recipient of the call.</p>
<p><b>Tennessee</b><br /> A Tennessee court has ruled that federal courts do not have jurisdiction over TCPA claims, <i>Brown v. Hosto &amp; Buchan</i>, but could exercise supplemental jurisdiction over TCPA claims and lawsuits involving other federal law questions.</p>
<p> <b>Washington</b><br /> Washington&rsquo;s Attorney General has sought permission from the Ninth  Circuit Court of Appeals to file a friend of the court brief asking the  court to overturn the trial court judge&rsquo;s ruling that Washington&rsquo;s  automated telephone call law only applied if the calling equipment could  initiate a &ldquo;conversation&rdquo; with the recipient.</p>
<p><br /></p>
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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