August / September 2010

In this issue:

  • The Department of Treasury argue that restrictions on the use of autodialers should not apply to debt collection calls
  • The Kansas attorney general announced he intends to enforce the TCPA’s disclosure requirements with regard to prerecorded political calls
  • Wisconsin has proposed a regulation which would permit residents to add their mobile telephone numbers to Wisconsin’s telemarketing “do-not-call” list

Federal

FTC

The FTC has reached a settlement with six defendants who marketed a credit card and failed to disclose that it could be used only to purchase items from a catalog operated by the defendants. FTC v. Low Pay, Inc., et al. The suit alleged that the defendants violated the Telemarketing Sales Rule by failing to disclose truthfully in a clear and conspicuous manner material limitations on use of the card as well as the total cost to receive goods or services sold.

The Federal Trade Commission has adopted changes to the Telemarketing Sales Rule setting forth rules for debt relief services. You should carefully review these new provisions if you intend to engage in debt relief solicitation or services.

Department of Transportation

U.S. Department of Transportation has requested that the FCC allow prerecorded voice messages to airline passengers without their prior express written consent to inform them of flight changes or other important travel information. As I previously have written, it seems like the FCC will “carve out” certain non-telemarketing exemptions for the proposed prior written consent requirement which it has announced it intends to implement. FCC Matter 02-278, U.S. Department of Transportation (Aug. 5, 2010).

Department of Treasury

The Department of Treasury has also requested that the FCC “carve out” an exemption for the use of “autodialers from collecting a delinquent debt.” The Department of Treasury argued that the FCC’s restrictions on the use of autodialers should not apply to debt collection calls which are already subject to numerous federal and state consumer protection laws including the FDCPA. FCC Matter 02-278, U.S. Department of Treasury (July 15, 2010).

State

Connecticut

Connecticut has amended its “No Sales Solicitation Calls Act” to increase the penalty imposed for violations of that law to not exceed $11,000 for each violation. Prior to the amendment, violations were punishable pursuant to the state’s Unfair Trade Practices Act, only, which allowed for civil penalties not to exceed $5,000 for each violation.

A Connecticut court has ruled that the TCPA provides for a four year statute of limitations. Giovanniello v. ALM Media, LLC.

Florida

A court in Florida has ruled that a TCPA plaintiff’s counsel could obtain an attorney’s fee award under state law of nearly $4,000 after winning a $2,000 judgment in settlement. Pollock v. Syndicated Office Systems.

Illinois

An Illinois court has ruled that a TCPA defendant’s offer to settle plaintiff’s claim mooted that claim such that it could not be removed to federal court. Damasco v. Clearwire Corp. The court, therefore, dismissed the case which had sought class action status for recipients of text messages from the defendant.

Kansas

The Kansas attorney general has announced that he intends to aggressively enforce the TCPA’s disclosure requirements with regard to prerecorded political calls. All prerecorded calls are required to promptly disclose the legal name of the caller and, before the end of the call, a telephone number which the recipient can use for the duration of the campaign to make a “do-not-call” request.

Michigan

A Michigan court has dismissed a TCPA claim on the grounds that it did not have jurisdiction over the case which must be brought in state court pursuant to the terms of the TCPA. Imhoff Investment, LLC v. Alfoccino of Auburn Hills, Inc., et al.

A Michigan court has dismissed a purported TCPA class action because the plaintiffs did not allege sufficient damages for the federal court to have jurisdiction under the Class Action Fairness Act. Exclusively Cats Veterinary Hospital v. Thomas Veterinary Drug, Inc.

Missouri

The Attorney General of Missouri has sent a letter to all nonprofits registered with the State warning of use of political “robo calls.”  Although Missouri law does not ban such calls, the letter cites the Telephone Consumer Protection Act disclosure requirements (legal name and telephone number) and warns of resulting federal actions in Missouri and other states. As the election season heats up, you can expect similar actions from other Attorneys General.

The Supreme Court of Missouri has ruled that a TCPA plaintiff was entitled to judgment because the defendants admitted all facts underlying the plaintiff’s TCPA claims. The Supreme Court of Missouri, therefore, ruled that the trial judge should have overturned the jury’s verdict in favor of the defendant. The court ruled that the jury could not reasonably infer that the sender of a facsimile had express consent to send it to the plaintiff and, therefore, the jury could not rule in the defendant’s favor. All American Painting, LLC et al. v. Financial Solutions and Associates, Inc.

New York

New York has amended its telemarketing statute to add required disclosures regarding negative option features and to expand the definition of telemarketing sales call to specifically include prerecorded messages and messages delivered to answering machines (New York Assembly Bill 8839). The bill also adds a disclosure required prior to the purchase of any good or service regarding negative option plans and that the customer’s account will be charged unless the customer takes affirmative action to cancel the sale.

Texas

An employee with the Secretary of State in Texas has confirmed that with the exception of social security numbers included in telemarketing applications, all information included in the filing is available to the public for inspection.

Washington

The Ninth Circuit has affirmed a trial court’s dismissal of a plaintiff’s suit against a telephone company based on Washington’s prerecorded telephone call law. Williams v. MCImetro Access Transmission Services, Inc., et al. The court ruled that the law only applied if a prerecorded message was delivered and automatically dialed. The facts in this case show that the call was only automatically dialed and no message was delivered. Therefore, the Ninth Circuit upheld the dismissal of the case.

Wisconsin

Wisconsin has proposed a regulation which would permit residents to add their mobile telephone numbers to Wisconsin’s telemarketing “do-not-call” list (ATCP 127.80).  Mobile numbers are already permitted on the national “do-not-call” list, and most telemarketing calls to mobile numbers are prohibited absent the express consent of the recipient based on federal law.