October 2006 - Call Compliance News

FCC
The FCC has supplemented its regulations implementing the Junk Fax Prevention Act of 2005 to reinsert abandonment provisions which had been removed from an earlier version of the regulation.  At first reading, it appeared that the FCC had removed its prohibition on abandonment, but this was a typographical error.

The FCC has issued a public request for comments regarding possible violations of the TCPA and the FCC’s fax and telemarketing rules.  The FCC hopes the comments will allow the Commission to investigate rule violations more efficiently and to initiate enforcement actions against violators as appropriate.  The FCC will not use the standardized form (Form 1088) to gather this information.

A California federal court has held that TCPA claims are property tort assignable under California law.  The Court held that the TCPA was remedial in nature, rather than penal.  Other courts have ruled differently on this issue, forbidding individuals from assigning their TCPA claims to other companies.

A court in New York has ruled that a sender of “informational” faxes was liable under the TCPA.  The court rejected the claim that a commercial entity could send “informational” faxes and avoid the ban on unsolicited faxes found in the TCPA. The court also ruled that the TCPA has a four year statute of limitations.

A United States court in Pennsylvania has ruled that an insurance company had no duty to defend a mortgage company which allegedly sent unsolicited faxes to consumers.

FTC
A United States District Court has issued judgment against two defendants in a cross border telemarketing fraud case barring them from engaging in deceptive marketing in the future and requiring a $15,000 payment for consumer redress.  The companies allegedly marketed advance fee credit cards to consumers with no credit or poor credit but did not provide the credit cards sold
The FTC has settled allegations against an entity which ran classified ads advertising employment at U.S. Postal

Service locations and which ran an inbound telemarketing campaign offering opportunities for employment for a registration fee.  This suit alleged misrepresentations with regard to this offer and the settlement prohibits the defendants from misrepresenting the material facts about their products in the future.  A $2,000,000 penalty was suspended and the defendants paid $105,000 in penalty.

A federal district court has awarded the Federal Trade Commission 7.5 million dollars against two Canadian companies which were accused of shipping unordered business directories to businesses.  The individual owners of the telemarketing companies were also assessed substantial liability.

The FTC has implemented a safeguards rule applicable to financial institutions with regard to financial privacy and personally identifiable information of consumers.  16  C.F.R. 314, Gramm-Leach-Bliley 15 U.S.C. 6801(b).

The Federal Trade Commission presented testimony for the House of Representatives regarding protection of consumer telephone records.  The agency has filed five lawsuits targeting data brokers who sold consumers’ telephone records without consumers’ knowledge or consent.  The agency has charged them with violating the FTC’s general prohibition on unfair deceptive acts which the FTC has interpreted to include pretexting. This is a good example of how a government agency will use its general power under statutes to regulate against perceived evils which are not specifically declared illegal (perhaps due to oversight or technological development).
State

California
The attorneys in the California monitoring decision indicated that they do not plan to appeal the ruling of the California Supreme Court that California’s monitoring law applies to interstate calls even if the monitoring occurs in another state.  The California attorney general may seek some kind of review regarding this radical decision.

Florida
Verizon Wireless has obtained an injunction against a Florida vacation company stopping it from placing illegal prerecorded calls to Verizon customers.  The Florida vacation company agreed to stop calls and paid $5,000 in damages.

Indiana
Indiana’s attorney general has issued a press release stating that he intends to enforce the state’s prerecorded telephone law against political prerecorded messages in the upcoming political season.

The Indiana attorney general has filed suit against a California nonprofit accusing it of making illegal prerecorded telephone calls into the State of Indiana.  The attorney general has asked for preliminary injunction barring the calls.  The nonprofit has blamed a vendor which advised it that the calls were legal.  This was the first action that Indiana’s attorney general has taken since announcing last month that he would enforce Indiana’s prerecorded telephone call law against political calls.

Massachusetts
The Massachusetts House of Representative is considering a law which would criminalize use of false caller ID information with intent to defraud.  Federal law already requires caller identification projection for telemarketers and clearly already bans use of false or deceptive caller ID information.

North Carolina
A North Carolina Court has denied class action status in a TCPA case on the grounds that individual questions regarding the purported class (whether there was express consent or not to receive the fax) caused the case to be inappropriate for class action.  This is a major victory against private plaintiffs seeking class action status under the TCPA.  Please contact me if you have any questions regarding this opinion. Blitz v. Xpress Imaging.

Oregon
The program manager for the Financial Fraud/Consumer Protection section of the Oregon Department of Justice has notified a professional fundraiser that it is her position that federal law preempts State of Oregon law with regard to the “do-not-call” restrictions.  This is important because Oregon’s “do-not-call” law, although the state no longer has a “do-not-call” list, differs from the federal restriction.  Some other states have continued to enforce their differing state rules despite the fact that they no longer operate an independent state “do-not-call” list. Thus, in these other states, telemarketing companies have had to comply with state law with regard to the state list even though federal law would exempt the call in question from the federal list.  Oregon appears to be taking the position that federal law controls the federal list and state law no longer applies to interstate calls.