New Concerns Over Compliance

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One of the most difficult aspects of achieving compliance with state and federal telemarketing statutes and regulations is the vast number of entities which regulate a given call. At least two federal agencies, the FCC and the FTC, and two states regulate each interstate telephone solicitation. Both the state where the call originates and the state where the call is received will assert at least their consumer protection jurisdiction on the call. Additional agencies, both state and federal, can have a supervisory role as well, depending on what is being sold by the particular telemarketing campaign.

A recent trend among the states is passage of statutes which prohibit telemarketers from using any method or device to block consumers' use of caller identification devices. At last count, at least Indiana, New Hampshire, Tennessee and Utah have passed such legislation, and a similar bill is currently before the General Assembly in New York.

The ability to enforce such requirements is questionable. I recently had a conversation with an assistant attorney general in one of those states about the ability to enforce such requirements considering that most large service bureaus do not 'block' Caller ID systems intentionally, but simply use equipment which does not have a telephone number to provide. Thus the consumer does not see a number on the device's display. He agreed that the situation described did not seem to violate his state's law. To date, the statute has not been enforced against any entity.

The most recent topic covered by the National Association of Attorneys General, in its bimonthly magazine, was the increasing scrutiny being applied to local exchange carrier billing. This concerns arrangements between businesses and LECs to bill for their products or services on a consumer's monthly local telephone bill. While the practice is perfectly legal and can be used to bill for a variety of goods and services, more states are focusing on this billing medium to combat “slamming” and “cramming” activities, as well as any other practice in violation of consumer protection laws. Illinois and Wisconsin have already taken action to apply additional regulation to LEC billing arrangements, a good indication that more states will be stepping up shortly.

Review of any of these sources can not fail to show that “slamming” and “cramming” telecommunications services are the most active issues at all levels of telemarketing regulation. Congress has passed new legislation this year and is considering other proposals aimed at slamming, while many states are considering, and some have passed restrictive laws. Many states have considered limiting the allowable means a consumer must use to authorize a change of long distance service provider. While the FCC allows four methods of valid authorization, some states limit telecommunications companies to as few as one of the four methods, i.e., Connecticut, most recently, passed a law which requires that a consumer's change be authorized either by a verbal authorization to a third party or a written authorization. The change in carrier must be accompanied by a notification in writing to the customer that a change has been made along with a postage prepaid postcard or toll-free number which the customer can use to revoke the authorization. The same statute includes numerous disclosures which the telephone solicitor must include in the initial contact script as well.

More state attorneys general are enforcing their state's commercial telemarketing registration statutes. Many states subject any outbound campaign to registration, bonding, disclosure and other requirements.

While the statutes commonly contain many exemptions based on the identity of the seller, the type of good or service for sale and the identity of the consumer, exempt status should be determined before beginning calling for the campaign. A service bureau, furthermore, is not exempt from registration, etc., simply because its clients would be exempt if they conducted their outbound calling in house; for example, many states exempt calls placed by licensed banks to offer credit cards or other services to potential customers, but those same states do not necessarily exempt calls placed by service bureaus on behalf of licensed banks to market the same services.

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