January 2012

In this issue:

  • The Bureau of Consumer Financial Protection has issued interim regulations implementing the Fair Credit Reporting Act restrictions on affiliate marketing.
  • In Illinois, the owner of a company, Universal Marketing Solutions, has been sentenced to 15 years in prison for directing a fraudulent telemarketing program involving timeshare sales.
  • A bill has been introduced in the Missouri Senate (SB 594) which would specify that the “do-not-call” list applies only to numbers used primarily for personal or family use.

Bureau of Consumer Financial Protection
The Bureau of Consumer Financial Protection has issued interim regulations implementing the Fair Credit Reporting Act restrictions on affiliate marketing.  The rules apply to persons who obtain and use information about consumers to determine their eligibility for product services or employment and share such information among affiliates.  76 Fed. Reg. 79308.  The restrictions republish earlier rules based on reassignment of rule-making authority from the FTC and other agencies to the bureau.

Alaska
The Alaska Legislature is considering a bill (HB 243) which would prohibit the use of automated telephone systems playing recorded messages to offer goods or services for sale, solicit information, promote a political campaign, or gather data or statistics.  This is a very broad ban, more restrictive than current federal law.

Illinois
The owner of a company, Universal Marketing Solutions, has been sentenced to 15 years in prison for directing a fraudulent telemarketing program involving timeshare sales.

Comment:  Most of the law and cases discussed in this newsletter involve civil penalties, but outright fraud is a crime and sometimes criminal penalties are appropriate.

The Seventh Circuit Court of Appeals decertified a TCPA class based on misconduct by the plaintiff’s attorney.  Creative Montessori Learning Centers v. Ashford Gear, LLC.  The court noted that the TCPA has potentially very heavy penalties if classes are certified.  Plaintiff’s counsel had obtained information from a fax broadcaster claiming that the information would be confidential and also recruited the class representative implying that a class already existed when it did not.  Based on this misconduct, the court noted that plaintiff’s counsel was not an appropriate fiduciary to pursue the class action under the TCPA.

The Seventh Circuit has also approved a trial court’s decision to dismiss a potential class action based on an offer by the defendant to fully satisfy the individual plaintiffs’ demands.  Damasco v. Clearwire Corp.  This case gives a very important weapon to businesses facing abusive TCPA class actions.

Indiana
The Indiana Supreme Court has reversed a trial court’s decision that the Indiana Auto Dialer law was unconstitutional.  State v. Econ. Freedom Fund.  The company, which was victorious at trial, sends prerecorded political telephone messages which can include polls, get out to vote, or other political messages.  The Supreme Court held that the law did not violate the First Amendment because it was content neutral and met the United States’ Supreme Court’s standards for time, place, or manor or restrictions on speech.  The court held that it was narrowly tailored to serve a significant government interest and left open amble alternative channels for communication.

Comment:  This case reverses a significant victory with regard to state prerecorded call laws which are more restrictive than the federal statutes (the TCPA and the TSR both have restrictions on prerecorded calls).

Maine
The Maine transient seller law requires registration if a telemarketer does not have a permanent place of business in the state.  Although the state statute incorporates the FTC’s definition of telemarketing as in effect January 1, 2000, the state’s website uses a more recent definition of “telemarketing” found in the revised Telemarketing Sales Rule.

Missouri
A bill has been filed in the Missouri Senate (SB 477) which would ban automated calls except with the subscriber’s express invitation, established business relationship, or for public purposes such as school closures.

A bill has been introduced in the Missouri Senate (SB 594) which would specify that the “do-not-call” list applies only to numbers used primarily for personal or family use.  The law currently applies to residential telephone service numbers, which can sometimes be used for business purposes.

View the attorney’s comments on this posting.

New Hampshire
A bill has been introduced in the New Hampshire House (HB 1232) which would repeal application of the national “do-not-call” list to political prerecorded calls.

View the attorney’s comments on this posting.

Texas
A Texas court has ruled that a consumer who owed a student loan revoked express consent to call her cell phone using an automatic dialing and announcing device.  The company argued that oral revocation of consent was ineffective, but the court disagreed holding that a consumer can orally revoke any express consent to be called on a cell phone using an ADAD given at a prior time.

Washington
A Washington consumer inadvertently and repeatedly was called by Clearwire and/or its collection agency and filed a class action against it for violation of the TCPA and the Fair Debt Collection Practices Act.  Kwan v. Clearwire Corp.  The company moved to compel arbitration (a binding ruling, but not in court).  The court denied binding arbitration because it did not find clear acceptance of the arbitration clause by any of the recipients of Clearwire’s telephone calls.

West Virginia
A West Virginia court has ruled that a caller responding to a classified advertisement is not making a telephone solicitation under the TCPA, provided that the purpose of the call is to inquire about or purchase goods or services advertised.  Mey v. Pep Boys.  The defendant sent an automated message to the plaintiff’s son in response to a Craigslist advertisement.  An appellate court in West Virginia dismissed the suit.  The court also noted that persons who knowingly release their telephone numbers have, in effect, given their invitation or permission to be called at that number.

Commentary

Political Speech vs. Commercial Speech in New Hampshire Bill

Limiting DNC to Residential or Family Numbers