February/March 2011

In this issue:

  • A California Appeals Court has ruled that California’s Anti-Spam Law was not preempted by CAN-SPAM; the Court ruled that allowing state restrictions does not alter the "uniform standard" governing commercial e-mail content established under the CAN-SPAM Act.
  • A Colorado federal judge has issued a Preliminary Injunction stopping enforcement of a Colorado tax law which would require out-of-state companies to send an annual notice to customers of use tax requirements and require the company to send a list of customer information to the Department of Revenue for each such sale.
  • The Illinois Senate is considering a bill (SB 1572) which would modify Illinois’ "do-not-call" list law to include prerecorded political calls to persons on Illinois’ "do-not-call" registry.

FTC
The FTC has alleged that three companies violated the Telemarketing Sales Rule and its new debt relief provisions by making deceptive and unsubstantiated claims. The defendants reached a settlement with the FTC involving a payment of $500,000 and banning them from future debt relief business.

California
A California Appeals Court has ruled that California’s Anti-Spam Law was not preempted by CAN-SPAM because the Court ruled the state law only related to misleading statements in the emails.  Hypertouch v. ValueClick, Inc., et al.  The Court ruled that the prevention of “falsity and deception” included the restrictions found in California’s law and therefore it was not preempted.  The Court ruled that allowing state restrictions does not alter the “uniform standard” governing commercial e-mail content established under the CAN-SPAM Act.

Colorado
A federal court in Colorado has heard arguments on the DMA’s Motion for Preliminary Injunction against the Department of Revenue for the State of Colorado.  Colorado has passed a law requiring remote sellers to mail notices via first class mail to any Colorado consumer who purchased $500 or more of goods or services in 2010.  The seller must also provide the same information to the State of Colorado.  The judge indicated that he intended to render a decision prior to January 31, 2011.

A federal judge has issued a Preliminary Injunction stopping enforcement of a Colorado tax law which would require out-of-state companies to send an annual notice to customers of use tax requirements and require the company to send a list of customer information to the Department of Revenue for each such sale.  This is a major victory for interstate commerce and businesses making interstate calls.

Illinois
The Illinois Senate is considering a bill (SB 1572) which would modify Illinois’ “do-not-call” list law to include prerecorded political calls to persons on Illinois’ “do-not-call” registry.  As I have said before, such an inclusion likely would be unconstitutional given the protections for political calls and the fact that most people on the list signed onto it when political calls were not included in its restrictions.

Indiana
The Indiana House has passed a bill (HB 1273) and sent it to the Senate which would define “consumer” for purposes of Indiana’s “do-not-call” list to include any Indiana number including cell phones or other wireless devices.  The law would require that the place of primary use of the device be a residential street address in Indiana.  The bill specifically refers to VOIP service thus including VOIP members in residential locations in Indiana to the Indiana “do-not-call” list.

Kentucky
The Kentucky House is considering a bill (HB 395) which would reassign administration for telemarketing registration to the Consumer Protection office of the Attorney General.  This appears to be a change in name only and no change in the substance of the state regulation.

Maryland
The Maryland Senate is considering a bill (SB 527) which would prohibit political calls to persons on the national “do-not-call” registry only if they live in Anne Arundel County, Maryland.  This is one of the strangest pieces of legislation I have ever seen.

Missouri
A Missouri court has ruled that opt-out notices are required only in unsolicited fax advertisements.  Nack v. Walburg.

New York
The New York General Assembly is considering a bill (AB 4754) which would include facsimile transmissions within those telephone communications restricted by New York’s “do-not-call” law (which applies the national “do-not-call” registry).  Federal law already prohibits unsolicited facsimiles so this bill would have little effect.

The New York Senate is considering a bill which would amend New York’s telemarketing law to reassign enforcement of the New York “do-not-call” law to the Department of State rather than the Board of Consumer Protection which is within the New York governor’s office.

Ohio
A U.S. District Court in Ohio has ruled that private plaintiffs do not have private causes of action to allege script violations in prerecorded calls.  Burdge v. Association Health Care Management. The court ruled that failure to identify the name of the telemarketer and provide address and phone number is a technical or procedural violation not subject to a private cause of action.

Oklahoma
The Oklahoma Senate is considering a bill (SB 398) which would include text messages within those telephone communications restricted by the State’s telemarketing laws.

Pennsylvania
Pennsylvania is considering a bill which would amend the State’s “do-not-call” law to include business numbers in its state “do-not-call” regulations.  Given that the restrictions of “do-not-call” lists were held to be constitutional because they protected residential privacy rights and that businesses do not have privacy rights, in most cases, this provision is most likely unconstitutional.

Wisconsin
The Wisconsin Senate is considering a bill (SB 16) which would include electronic prerecorded messages within the definition of unsolicited telephone calls restricted by the Wisconsin “do-not-call” list.  Additionally, senders of electronic prerecorded messages would be required to register with the Department of Agriculture in Wisconsin and pay a fee.