Privacy advocate wins $19,500 in ruling

Discover Financial Services was ordered to pay $19,500 this month for four telemarketing calls it initiated to the home of Diana Mey in January 2003.

Ms. Mey, a privacy advocate known as the “Erin Brockovich” of telemarketing, is a Wheeling, WV, homemaker whose no-call lawsuits against corporations have made national headlines.

“[Discover] fought the suit for just under three years, all the while admitting they made the calls but claiming they weren’t liable because they were merely trying to reach someone else,” she said.

According to the arbitrator, each call violated provisions of the Telephone Consumer Protection Act.

Discover Financial Services, a Riverwoods, IL, business unit of Morgan Stanley that operates the Discover Card with 50 million cardmembers, said in a statement that it “disagrees with the ruling by the Judicial Arbitration and Mediation Services arbitrator in the Diana Mey case and we are weighing our options with regard to an appeal.”

Ms. Mey said she moved to a new home in November 2002 but called Discover in October 2002 to provide her new number and to reiterate her request not to be solicited by telephone. Ms. Mey was a Discover cardholder at the time.

Discover initiated a campaign in January 2003 to solicit new cardmembers, according to Ms. Mey and the ruling, and began calling her number, asking for one of its previous owners, Susan Meyer.

Ms. Mey sued in December 2003 over the calls, and Discover filed a motion to have the case moved into arbitration. The hearing was held in September 2006, with the arbitrator’s decision made Nov. 7.

Joseph J. Lewczak, a partner at Davis & Gilbert in New York, noted the importance of company-specific no-call lists.

“These days, the talk has been and typically is all about the national do-not-call list,” he said. “However, one of the most important factors to remember in complying with the general do-not-call provisions of the [Telemarketing Sales Rule] and TCPA rules is the need to maintain a company-specific list. As a practical matter, scrubbing a calling list against the do-not-call registry is not enough, since a consumer’s request to be placed on a company-specific do-not-call list trumps any exemptions under the registry between the seller and the consumer.”

For example, Mr. Lewczak said, a seller can call him if it has an established business relationship with him, even if his name is on the DNC registry. But “if I tell them to put my name on their internal do-not-call list, they can no longer call me,” he said. “Therefore, it is important to remember that once a calling list has been scrubbed against the do-not-call registry, it must also be scrubbed against any company-specific list.”

Ms. Mey said she thinks of herself as a champion for the little guys.

“I’m not doing this for the money,” she said. “I want people to know they have recourse. I encourage them to sign up for the [DNC] registry. It’s very easy to do online at the Federal Trade Commission’s Web site.”

Mr. Lewczak said he gives clients this advice regarding DNC provisions:

* Develop a written policy.

* Train personnel and vendors.

* Scrub your calling lists.

* Remember that some states still have their own DNC registries.

* Be careful about relying on an affiliate’s existing business relationships.

* Don’t forget about internal DNC lists.

* Keep records.

* Appoint a chief telemarketing officer.

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