National Do Not Call Registry and List Compliance News
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DO NOT CALL STATE & FEDERAL REGULATORY NEWS
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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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October-November 2010 - Call Compliance News
<p>In this issue:</p>
<ul>
<li>The Federal Communications Commission has issued a notice of apparent liability for forfeiture against Presidential Who’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 “free” trial membership in programs via telemarketing calls.</li>
<li>The FTC has opened a business center at <a href="http://www.business.ftc.gov/" title="www.business.ftc.gov">www.business.ftc.gov</a> attempting to provide businesses compliance tools with regard to applicable FTC law.</li>
</ul>
<hr />
<p>FEDERAL<br /> <b>FCC</b><br /> The Federal Communications Commission has issued a notice of apparent liability for forfeiture against Presidential Who’s Who, Inc. alleging at least 73 unsolicited advertisements using facsimile machines were sent in violation of the TCPA. The FCC found liability in the amount of $345,000. The sender of the faxes claimed that they were not advertisements. The FCC found that despite the sender’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. The notice of apparent liability is an important discussion of offers of “free” 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’s restrictions on sending unsolicited faxes and finding forfeiture in the amount of $528,000. 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. 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. 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. <i>FTC v. Inc21.com Corp.</i> 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’ telephone bill.</p>
<p>The FTC has announced the mailing of $5.7 million in reimbursement checks to consumers who were marketed an allegedly “free” 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. This is an example of the “accomplice liability” 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. <i>FTC v. Your Money Access, LLC</i></p>
<p>The FTC has opened a business center at <a href="http://www.business.ftc.gov/" title="www.business.ftc.gov">www.business.ftc.gov</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. 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. This settlement is the second largest civil penalty obtained by the FTC in a debt collection case. <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. <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’s allegation that there was an established business relationship between the sender and recipient of the fax. <i>Garrett v. Sharps Compliance, Inc.</i> 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. All commercial speech restrictions are less than those applicable to fully protected speech. It is likely that such a broad “forced speech” requirement would run afoul the United States Constitution.</p>
<p><b>Louisiana</b><br /> An appeal’s court from the fifth circuit has ruled in favor of a business and against class certification in a TCPA case. <i>Gene & Gene LLC v. Biopay, LLC</i>. 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’s debt. 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’s claim against a telemarketer (<i>Charvat v. NMP, LLC</i>) holding that live telemarketing calls can only create one “violation” per call. The court ruled that automated calls were subject to the same limitation, i.e. one “violation” per automated call.</p>
<p><b>South Carolina</b><br /> The campaign manager for the republican candidate for South Carolina’s lieutenant governor position has made arrangements to surrender to South Carolina authorities after allegedly violating the State’s ban on unsolicited prerecorded telephone calls. 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 & Buchan</i>, but could exercise supplemental jurisdiction over TCPA claims and lawsuits involving other federal law questions.</p>
<p> <b>Washington</b><br /> Washington’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’s ruling that Washington’s automated telephone call law only applied if the calling equipment could initiate a “conversation” with the recipient.</p>
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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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