February, 2004

FCC
The FCC has issued several citations to various consumer finance companies for alleged failure to honor the national “do-not-call” registry. While an official FCC citation does not involve a penalty or finding of wrong doing, it is the first step necessary for the FCC to assess such fines or penalties on non-regulated (i.e. non-telecommunication) companies. If you receive a citation you should immediately discuss same with counsel.

The Federal Communications Commission has begun investigations of other telecommunications companies regarding alleged violations of the federal “do-not-call” list.

FCC and FTC
The Memorandum of Understanding between the FCC and FTC has been released. The document fails to address substantive differences between the FCC and FTC regimes. Any confusion regarding abandonment, coverage of charitable calls etc. will not be cured by this document. Please contact me if you would like a copy of this document.

U.S. CONGRESS
Congress has considered, and President Bush has signed, HR 263, which is the Consolidated Appropriations Act for 2004. The bill requires that the Federal Trade Commission amend the Telemarketing Sales Rule to require telemarketers to obtain the national “do-not-call” list monthly rather than every three months. Most companies download the list more often than quarterly.

U.S. SUPREME COURT
The United States Supreme Court declined to hear a case involving Fax.com filed in the State of Missouri. The Eighth Circuit had ruled that the faxing prohibitions found in the Telephone Consumer Protection Act were constitutional.

ARIZONA
The Arizona House is considering a bill which would amend the state telemarketing law to prohibit call center employees from sending financial or credit information to a foreign country without express consent of the consumer. The bill would also ban foreign companies from submitting bids to the state for customer service call center contracts.

COLORADO
The state is considering a bill to include politicians’ calls in those restricted by the state “do-not-call” list. Similar restrictions are being considered in Kentucky and New Jersey.

HAWAII
The Hawaii House is considering a bill which would amend state law to prohibit calls to consumers whose names are included on the federal “do-not-call” list.

MISSOURI
A bill has been proposed in the Missouri Senate which would allow businesses to add their names and telephone numbers to the Missouri “do-not-call” list. Such a provision would be obviously unconstitutional as the justification of residential privacy does not apply to businesses. This restriction would be blatantly unconstitutional and anti-competitive, and it seems unlikely to receive support.

The Missouri Attorney General has offered to settle a claim against a company exempt from the Missouri “do-not-call” list for more than $200,000. Even though exempt, the business generated complaints caused by confusion as to which businesses were subject to the Missouri list. It is a good reason why your business should consider scrubbing even if exempt as the business still has to deal with these types of investigations, even though they are, in my opinion, likely unfounded.

A bill has been proposed in the Missouri Senate to amend state law to require that state entities contract only with businesses operating call centers in the United States. The bill would also require that any person answering an inbound call, or placing an outbound telephone call provide the consumer, upon request, the identification of the city, state and country where the representative is located and the employer of the representative. The bill would also ban transmittal of any financial creditor identifying information to a foreign country without express written permission of the consumer.

NEW JERSEY
New Jersey has amended its “no-call” list law to make minor changes. These include exempting collections calls to existing customers from the definition of “telemarketing sales call” and allowing the Division of Consumer Protection to incorporate the state list with the national “do-not-call” list. The bill also modifies the three month grace period found in the law to only protect the telemarketer if three months had not passed and the telemarketer had not accessed the list during that time.

NORTH DAKOTA
The North Dakota Attorney General has appealed the decision striking down portions of the North Dakota “do-not-call” list to the Eighth Circuit Court of Appeals. Recently, ten states filed an Amicus brief with the court, which means that, although not involved directly in the suit, they are supporting North Dakota’s arguments. We are preparing our brief in response arguing that applying the restrictions to some charities, and not others, is unconstitutional. The District Court, which ruled in our favor, awarded our clients attorneys’ fees, albeit at the rates charged by North Dakota counsel.

OHIO
Ohio has amended its telemarketing law to specifically ban violation of federal acts or rules. The Attorney General is now able to sue under state law in state “for violations of federal law.” The State Attorney General would be prohibited from pursuing actions which had already been filed and litigated by the FTC or FCC.

UTAH
I recently successfully argued before trial court in Utah about Utah’s law regarding prerecorded telephone calls not applying to interstate telephone calls. The judge agreed and found that the TCPA preempted state law application to these interstate calls with regard to their prerecorded nature. In this situation, the Utah law, since amended, did not contain an exemption for calls on behalf of a charity. The attorney general may appeal.

On an interesting note, the Assistant Attorney General was not aware that the statute had been amended to allow calls by or on behalf of charitable organizations, and I recently received another citation to another charitable organization alleging violation of this state law. In Court, he claimed to be “blindsided” by the text of the statute.