APRIL 2016

FTC

The FTC has signed a memorandum of understanding with the Canadian Radio & Telecommunications Commission (“CRTC”) to strengthen “do-not-call” enforcement.  The agreement to provide mutual assistance in exchange for information does not create any legally binding obligation on either agency.

The FTC has settled claims against a Florida telemarketing company which allegedly made illegal prerecorded calls to persons on the national “do-not-call” list.  FTC v. Lilly Management, et al.  The proposed settlement includes a $1.2 million civil penalty all of which is suspended except for $19,000 based on defendant’s inability to pay.

A nonprofit has settled charges that it violated FTC “cramming” restrictions by making more than $70 million in unauthorized charges on consumers’ landline telephone bills.  FTC v. American eVoice Ltd., et al.  One defendant Bibliologic surrendered all of its assets except for $100,000 that must be used for charitable purposes.

Comment: Total asset forfeiture amounts to “kicking down the door” of this defendant.

The FTC has mailed almost $600,000 to 1,700 consumers who lost money in a fraudulent debt collection scheme.  FTC v. Kirit Patel et al.  The FTC alleged the companies posed as law enforcement agents, including “Officer Mike Johnson” to collect illegitimate debts.

California

A California court has approved a settlement between a consumer loan company and a class of more than 30,000 people who applied for loans.  Stemple v. QC Holdings, Inc.  The consumers listed a telephone number in “employment” or “contacts” blanks on the application but not in the field labeled “personal” and alleged that the defendant’s calls to them based on these telephone numbers were not placed with their “prior express consent”.

Comment: It is extremely important to review how you obtained telephone numbers to be called.  Several class actions have resulted after businesses called numbers provided by consumers, but consumers argued they were provided in circumstances which limited the sorts of calls which could be placed to those numbers.

Delaware

A bill has been proposed in the Delaware House (HB 270) which would amend the state’s telemarketing registration statute to allow a business to call only after obtaining a certificate of registration.  Previously, the law allowed businesses which had filed a registration statement to begin calling immediately.  Additionally, the law requires that registrants notify the Director of the Consumer Protection Unit regarding any material change in disclosed information within 30 days.

Further the Director may deny any application for several reasons, including: past violations of Delaware’s telemarketing law, any state telemarketing law, or the Telemarketing Sales Rule.

Indiana

An Indiana court has ruled that the state’s prerecorded telephone call statute was constitutional.  Patriotic Veterans, Inc. v. Indiana.  The Court held that the exemptions to the statute were based on consent or “complied consent” and not content-based so that the statute was subject to strict scrutiny.  Instead the Court applied a lesser standard of constitutional review known as the “time, place, or manner” restriction.  After applying this test, the Court held the law was constitutional.

Massachusetts

A bill has been introduced in the Massachusetts Senate (SB 2246) which would require that a caller ID allow a consumer to “directly communicate” with a telephone solicitor.  It would also require prompt disclosure of the purpose of the call, the true name of the individual make of the solicitation, and a complete and accurate description of the goods or services being offered within the first minute of the call.

Missouri

A Missouri court has ruled that the Attorney General’s allegations of four representative consumer complaints against Charter Communications were sufficient to state a claim for violation of state and federal “do-not-call” lists.  Missouri ex rel. Koster v. Charter Communications, Inc.

Comment: Missouri’s Attorney General has been actively filing cases in federal and state court alleging violations of state and federal no-call laws.  Please note that Missouri’s law differs in some key aspects from the federal statute and you should ensure compliance with both prior to making calls into Missouri.

Missouri and Indiana are co-hosting the third annual “No-Call Law Enforcement Summit” in Indianapolis, Indiana.  Unwanted calls and prerecorded calls are the most common type of consumer complaint received by Missouri’s Attorney General’s office, which received more than 42,000 complaints on this topic in 2015.

Comment: For a person running for office at all times like Missouri’s Attorney General Chris Koster, lawsuits amount to free campaign coverage.  It is important that you comply with all states’ laws, but pay special attention to states like Missouri which have terms that differ from federal restrictions.