December 2011

In this issue:

  • An Illinois company will pay a $500,000 fine to the FTC to settle allegations that it did not honor consumer requests to be placed on company-specific “do-not-call” lists. FTC v. Americall, et al.
  • The FTC has published a final rule amending its Business Opportunity Rule. See 76 Fed. Reg. 76816. The rules will become effective on March 1, 2012, and apply to entities selling franchises and other business opportunities.
  • A Mississippi court has ruled that the federal Truth in Caller ID Act of 2009, which is part of the TCPA, preempts conflicting state caller identification law. Teltech Systems v. Barbour.

Federal Trade Commission
The FTC has issued its annual summary of the national “do-not-call” registry.  There are almost 210 million numbers on the “do-not-call” list.  The number of consumer complaints concerning unwanted telemarketing calls increased to 2.2 million in the fiscal year 2011, up from 1.6 million in 2010.  Complaints about illegal prerecorded messages are increasing in frequency, the FTC noted, so it would not be surprising to see additional regulatory and enforcement action in that field.

An Illinois company will pay a $500,000 fine to the FTC to settle allegations that it did not honor consumer requests to be placed on company-specific “do-not-call” lists. FTC v. Americall, et al.

The FTC has filed suit against Roy M. Cox and his company, Castle Rock Capital Management, S.A. and other entities alleging Cox placed prerecorded calls for clients selling credit card interest rate reduction programs, extended automobile warranties, and home security systems.  The complaint alleges that these companies failed to transmit caller identification information and knowingly violated the national “do-not-call” registry.

The FTC has published a final rule amending its Business Opportunity Rule.  See 76 Fed. Reg. 76816.  The rules will become effective on March 1, 2012, and apply to entities selling franchises and other business opportunities.

U.S. Congress
A bill has been proposed in the U.S. Congress (H.R. 3596) which would require any business seeking to relocate a call center to a location outside of the United States to notify the Secretary of Labor of such a move and be subject to substantial financial penalties for failure to make such notification.  Any employer who makes such notification shall be ineligible for direct or indirect federal grants or guaranteed votes for five years.  The bill also would require that employees in offshore locations disclose their physical location at the beginning of each customer service communication initiated or received.

California
Five class actions alleging a debt collector violated the TCPA have been transferred to federal court in the Southern District of California.  In re: Portfolio Recovery Associates, LLC.  The class actions allege violation of the TCPA based on calls received by the plaintiffs at their cell phone numbers.

Florid
The Florida House is considering a bill (HB 749) which would remove the requirement that applicants provide social security numbers with telephone seller license applications and allow the applicant to provide other forms of valid identification other than a driver’s license.

Illinois
An Illinois court has ruled that an intended recipient had standing to sue under the TCPA for debt collecting calls received on a cell phone.  D.G. v. William W. Siegel & Associates.  Here, again, a consumer received calls on his cell phone intended for another person who owed a debt.  The court ruled that the defendant intended to call the plaintiff’s cellular telephone number and, therefore, had a claim.

Maryland
A Maryland court has dismissed a TCPA claim that debt collection calls constitute telephone solicitations in violation of that law.  Worsham v. Account Receivables Management.  The court also ruled that the plaintiff did not have a claim for invasion of privacy based on receipt of these calls.

Michigan
A federal court has ruled that a consumer who was called on his cell phone as a result of error did have standing to bring a purported class action under the TCPA. Kane v. National Action Financial Services.  The court distinguished the facts in this case from earlier cases where courts dismissed claims brought by persons living at the same address as the intended recipient of the telephone call.  Here, the defendant intended to call the telephone number but had no relationship with the person owning that number and, therefore, the court ruled that the TCPA claim could proceed.

View the attorney’s comments on this posting.

Mississippi
A Mississippi court has ruled that the federal Truth in Caller ID Act of 2009, which is part of the TCPA, preempts conflicting state caller identification law.  Teltech Systems v. Barbour.  The court noted that it would be impossible for a business to conduct calling anywhere in the country without risk of liability under the Mississippi statute and therefore held that it had the practical effect of regulating commerce outside the state of Mississippi and was, therefore, unconstitutional and preempted by federal law.

View the attorney’s comments on this posting.

Missouri
The Missouri Attorney General has obtained a restraining order barring Mary L. Aponte and various businesses controlled by her from contacting persons on the Missouri “do-not-call” list unless exempt.  Companies included in the list were A Sunny Escape, Your Holiday Extravaganza, Inc., A Great Day to Get Away, LLC, and MFG Music, Inc.

A bill has been pre-filed in the Missouri Senate (SB 477) which would specifically exclude business telephone numbers from Missouri’s “do-not-call” list, as well as specifically include prerecorded calls within the definition of “telephone solicitation” covered by the list.

Ohio
An Ohio court has allowed a pro se plaintiff to continue his suit against a chiropractor alleging that the chiropractor called him after he made a “do-not-call” request.  Hamilton v. Spurling et al.  The court held that the first call received by the plaintiff did not create a cause of action under the TCPA but did “count” for purposes of computation of damages based on total number of calls received.

Commentary

Truth in Caller ID Act Preempts State Law

Intended Recipients & Keeping Your Lists Clean