April 2010

In this issue:

  • Change to Tennessee ADAD Registration Rules.
  • Newly introduced/passed state bills
  • Uniform standards sought for appraisal of cash and non-cash contributions.
  • FCC has published Notice of Intent to modify the TCPA.

FCC

The FCC has published notice of intent to modify the Telephone Consumer Protection Act in the Federal Register.  Comments are due on or before May 21, 2010.  The proposal would ban predictive dialed or prerecorded calls to cellular telephone numbers or other numbers for which the called party is charged for the call at the express written consent of the recipient.  The proposal would also ban prerecorded calls to any number for telemarketing purposes without the express written and signed consent of the recipient.  The second proposal is intended to “harmonize” FCC prerecorded rules with the TCPA prerecorded rules previously adopted.

An additional restriction in the new rules would require that prerecorded telephone messages offer consumers a prompt means to opt out of future solicitations, and would require that automatic telephone dialing systems, which deliver prerecorded messages to a called party, release the called party’s line within five seconds of when the called party has hung up.

The proposed rule would also measure the abandonment percentage “per marketing campaign” similar to the standard used by the FTC. Currently, the FCC allows companies to measure the 3% standard using all covered calls, and this change would make the rule more restrictive. It would only make a difference, however, for companies currently not subject to the FTC’s rules.

Connecticut

A bill has been proposed in the Connecticut Senate (SB 187) which would repeal the portion of Connecticut’s telemarketing law which rules that the location of a transaction is in Connecticut if either the telemarketer or the consumer is domiciled in the state, and replace it with a provision creating a state “do-not-call” list administered by the Commissioner of Consumer Protection.  It would also ban all prerecorded messages and provide for fines of not more than $11,000 for each violation of the rule.

A bill has been proposed in the Connecticut House (HB 5505) which would regulate solicitation of sales of electricity and require that all aggregators or agents of electric suppliers comply with the Telemarketing Sales Rule. Electric suppliers are likely not exempt from the FTC’s jurisdiction, so this bill would have little substantive effect because the companies are already subject to the TSR.

Florida

A Unites States court in Florida has ruled that it did not have jurisdiction over TCPA claims (Pollock v. Syndicated Office Systems). Such claims, the court rules, were to be heard only in state court.

Kansas

A bill has been introduced in the Kansas Senate (SB 456) which would prevent prerecorded calls without prior express consent.  It would apply to all political calls and would only exempt calls from nonprofit tax exempt charitable organizations sent solely for the purpose of soliciting voluntary donations of clothing to benefit military veterans.  An exception of this nature, likely intended to benefit one or a small group of callers, likely makes this proposal unconstitutional.

Illinois

A federal court in Illinois has denied a defense motion to dismiss a purported class action for receipt of allegedly illegal text messages.  The plaintiff, on behalf of a class, alleged that texts he received promoting a movie violated the TCPA.  The court reviewed whether the FCC had authority to include text messages in the definition of “call” as that word is used in the TCPA.  The text messages alleged illegal in the suit were unsolicited.

Michigan

A United States district court in Michigan has also dismissed a purported class action under the TCPA for lack of jurisdiction holding that such claims could only be brought in state court (APB Associates v. Bronco’s Saloon, Inc.).

Mississippi

Mississippi has passed a law (HB 181) which reenacts Mississippi’s Telephone Solicitation Act through July 1, 2013. Mississippi’s law is automatically periodically repealed by its terms. This repeal is, as far as I know, unique among state telemarketing laws.

Nevada

Nevada’s telemarketing registration rules may soon be suspended based on the legislature’s elimination of the consumer affairs office and failure to assign duties for telemarketing registration to any other state regulator (GA 561).  The new law may have little effect because Nevada’s registration requirements apply to so few companies. Nevada is among a group of states requiring registration only if certain representations are made in the script (e.g. that the consumer will receive a prize).

New Hampshire

The United States district court in New Hampshire has agreed to hear a TCPA claim (Holster v. BNA Subsidiaries, LLC), although most federal courts have ruled that these claims must be brought exclusively in state court.

South Carolina

A bill has been proposed in South Carolina which would prohibit charitable organizations from blocking telephone numbers from making telephone calls to solicit contributions (SCHB 4783).  This activity is already illegal under the Telemarketing Sales Rule. Projecting false information is also illegal pursuant to numerous state and federal laws.

Tennessee

The Tennessee Regulatory Authority recently announced that its Directors have voted to withdraw the Automatic Dialing and Announcing Device (ADAD) Registration Rules.

West Virginia

A bill has been proposed in the West Virginia House (HB 2548) which would create a state private cause of action for $2,000 per violation for curfew violations, “do-not-call” list violations, caller identification violations, or disclosure violations of restrictions similar to those set forth in the Telemarketing Sales Rule and TCPA.  The bill would substantially expand the types of “violations” private individuals could sue for in the State of West Virginia with regard to telemarketing compliance.

Wisconsin

A bill has been introduced in the Wisconsin Senate (SB 588) which would provide for a private cause of action with attorneys fees to successful plaintiffs for violations of Wisconsin’s state “do-not-call” list. Wisconsin has one of the more restrictive and expensive state “do-not-call” lists.

Wyoming

A bill has been proposed in the Wyoming Senate (SB 57) which would ban unsolicited telephone sales calls to any unpublished cellular telephone number.  The law would allow calls in response to the express request of the recipient, only. There is a federal restriction banning calls to cellular numbers using an automatic telephone dialing system, the TCPA, but few states ban telemarketing to cellular numbers altogether.

Commentary

Oral Argument Heard in Washington Preemption Case - Update to June 27, 2010

TCPA Case Considered by the United States Supreme Court