In this issue:
Federal
FCC
The FCC issued a forfeiture order against a mortgage lending corporation in the amount of $18,000 for alleged violations of the TCPA. The company had argued that it had an established business relationship with the persons to whom it sent prerecorded messages, but the FCC disagreed.
FTC
An appellate court has ruled that a telemarketer made deceptive and false claims when marketing a program concerning mortgage sales. FTC v. Stefanchik, et al. The FTC alleged general violations of the FTC Act and violations of the Telemarketing Sales Rule for misrepresentations made in telephone presentations. The FTC argued that contrary to the defendants’ claims, it was very difficult for individuals to amass wealth using their services. The court found the defendants liable for more than 17 million dollars in damages.
The FTC has sued Dish Network over alleged violations of the national ‘do-not-call’ registry. The FTC had received more complaints about Dish Network than any other company, and Dish Network is the first accused
company which has not settled ‘do-not-call’ violations. The complaint
also alleges that Dish Network’s dealers made illegal prerecorded calls
to consumers.
The FTC has entered a settlement with DirecTV and a service provider
settling charges that the entities violated the ‘do-not-call’ provisions
of the Telemarketing Sales Rule. DirecTV paid a penalty of $2.31
million. The FTC alleged that the companies called consumers who made
company specific ‘do-not-call’ requests.
The FTC and Kentucky’s Attorney General filed a complaint alleging a
group of companies and their owners violated the Telemarketing Sales
Rule and FTC Act by falsely offering consumers free goods or services.
The settlement permanently barred the defendants from telemarketing or
assisting others in telemarketing unless they obtain a five million
dollar performance bond. The settlement also involved a monetary
judgment of more than 15 million dollars. All but $1.3 million was
suspended based on inability to pay.
State
Alaska
The Alaska House unanimously passed HB 93 which adds calls to wireless
numbers to those calls regulated by the state’s telemarketing law.
Florida
The appellate court affirmed certification of a TCPA class of persons
who received allegedly illegal faxes. The court indicated that it will
consider whether the TCPA allows class actions in Florida but did not
address the issue in this decision. Guy’s World, Inc. v. Condon.
Maryland
A plaintiff’s TCPA lawsuit was dismissed by a court based on a prior
release the plaintiff signed releasing all entities associated with
prior calls. The plaintiffs had received over 700 unsolicited fax
advertisements.
Missouri
The Missouri Senate is considering a bill which would amend the state
‘do-not-call’ list to include personal cell phone numbers. The bill
would also prohibit prerecorded telephone calls to individuals on the
‘do-not-call’ list unless they have given permission to receive the call
or have a current or recent established business relationship with the
caller. Political calls would also be required to include a ‘paid by’
statement.
New York
A bill has been introduced in the New York General Assembly (AB 7563) which would amend the state’s telemarketing law to add prerecorded messages and calls received by voice mail or answering machine services to the definition of ‘telemarketing’ in the statute. The bill would also require a prompt disclosure of the name of the telemarketer and the person on whose behalf the solicitation is being made, the purpose of the telephone call, the identity of the goods or services, and the cost of goods or services that are subject to the telephone call. These restrictions largely mirror those found in the Telemarketing Sales Rule.
The New York General Assembly has appropriated $400,000 to fund enforcement of the telemarketing laws in the coming fiscal year.
A plaintiff travel agency won a lawsuit against a cruise company for TCPA violations based on unsolicited fax advertisements. The court held
that established business relationship was not sufficient to allow fax
advertisements under federal law. The court ruled that the FCC’s
interpretation of the statute allowing an established business
relationship in the past was also incorrect.
North Carolina
A bill has been proposed in the North Carolina General Assembly (HB 686)
which would require local telephone companies to notify telephone
subscribers regarding the existence of the ‘do-not-call’ registry and
how consumers can register to be on that list.
Oklahoma
The Oklahoma Senate is considering a bill (SB 413) which would amend the
state’s telemarketing law to include business-to-business calls. If
passed, business-to-business callers would be subject to the state?s
registration statute, unless otherwise exempt.
Ohio
The Sixth Circuit Court of Appeals has ruled that a private plaintiff
under the TCPA could recover damages only ‘per call’ rather than per
alleged violation. Charvat v. GVN Michigan. This is a high level appeals
court and the opinion will carry great weight in other jurisdictions
with regard to private TCPA claims. Plaintiffs often allege damages of
thousands of dollars for a single call, when Congress contemplated $500
per call in damages which can be trebled for knowing or willful violation.
Pennsylvania
The Pennsylvania House is considering a bill (HB 1227) which would add
political calls to the definition of ‘telephone solicitation call’
subject to registration requirements in the Commonwealth.
West Virginia
In a lawsuit against a telemarketer, the West Virginia attorney general
stated that there have been only three prosecutions under the
telemarketing registration law in that state.
A telemarketer argued that it was not subject to the registration
requirement in the state based on the federal commerce clause and the
fact that the telemarketer engaged only in interstate commerce. The
court disagreed and held that the registration requirement was not an
undue burden on interstate commerce.
Washington
A bill to eliminate Washington’s telemarketing registration requirement
(SB 6037) has passed the Senate and has been the subject of a public
hearing in the House. The bill was sponsored by Washington’s governor.