Telemarketing

The Telemarketer’s Guide: Consumer Disclosures

August 12, 2020 by David Klein

To help you understand how to sell to consumers through telemarketing, while complying with the law, we have created this guide for every telemarketer in order to understand consumer disclosures. The guide introduces the regulations of the Telemarketing Sales Rule.

If you are an advertiser who wants to reach consumers through a telemarketing campaign, you may be focused on how important your first impression will be with each consumer that you contact.

As a part of this first impression, you will need to respect your consumers’ legal rights. The benefits of reaching thousands of consumers efficiently, come with legal requirements meant to protect those consumers from receiving unwanted solicitations.

Beyond getting your marketing message across, your communications must include specific disclosures to protect consumers and avoid engaging in illegal solicitation. Running telemarketing campaigns requires familiarity with telemarketing laws and regulations.

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Virginia’s Amended Telemarketing Regulations Go into Effect on July 1

May 25, 2020 by David Klein

On April 2, 2020, Virginia Governor Ralph Northam signed a bill into law that amends the State’s Telephone Privacy Protection Act (the “Act”). The amendments to Virginia’s telemarketing regulations are intended to curb caller ID spoofing and broaden the definition of what a “telephone solicitation call” is within the meaning of the statute. Additionally, the amendments increase the amount that private individuals and the Attorney General can, respectively, seek in damages and penalties.

How will the amendments affect telephone solicitations?

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Telemarketing in a State of Emergency

March 20, 2020 by David Klein

Within a few short weeks, Covid-19 (“Covid-19”), the disease caused by the novel coronavirus SARS-CoV-2, has affected nearly all aspects of life in America. The United States has declared a state of emergency, and multiple states of the Union have followed suit. In addition to Covid-19’s pervasive effects on business, companies engaged in telemarketing also need to be concerned with special restrictions that they may face in jurisdictions that have declared states of emergency.

What is Prohibited During a State of Emergency?

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Changes Coming to New York Telemarketing Law

February 4, 2020 by David Klein

On March 1, 2020, New York’s “Nuisance Call Act” will go into effect, bringing significant change to the existing New York telemarketing law. The legislation, which was signed into law by Governor Andrew Cuomo on December 2, 2019, is intended to close a loophole in New York’s Do Not Call Law, which originally took effect in 2001.

How Does the Act Change New York Telemarketing Law?

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Cruise Company Defendants Settle FTC-Alleged TSR Violations

January 14, 2020 by David Klein

A call center and three (3) individuals associated with a telemarketing effort on behalf of Grand Bahama Cruise Line LLC (“GBCL”) recently settled alleged TSR violations of the Telemarketing Sales Rule (“TSR”) with the Federal Trade Commission (“FTC”). The FTC intends to litigate this matter against the remaining seven (7) defendants in federal court, including GBCL. The FTC’s complaint alleges that GBCL and the other defendants committed TSR violations by placing millions of telemarketing calls offering free cruises to telephone numbers listed on the National Do Not Call Registry (“DNC Registry”).

What are the Alleged TSR Violations?

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TRACED Act Contains New TCPA Penalties

December 10, 2019 by David Klein

December 10th, 2019

The US House of Representatives recently passed the “Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act,” or “TRACED Act.” If written into law, the TRACED Act would implement a number of changes to the TCPA landscape, such as the creation of a new Interagency Working Group and new anti-spoofing requirements. Most notably for our readership, the TRACED Act imposes new TCPA penalties in the form of civil forfeiture, adding to the already significant penalties that exist today for violations of the TCPA.

What new TCPA penalties and provisions will come into effect if the TRACED Act is signed into law?

Civil Forfeiture Added as Possible TCPA Penalty

On top of the already steep penalties for TCPA violations ($500 per violative telephone call/text message, $1,500 for each willful or knowing violation), the proposed language of the TRACED Act imposes a new civil forfeiture penalty for intentional violations of the TCPA and leaves enforcement largely at the discretion of the Federal Communications Commission (“FCC”). Specifically, the bill states that if done “with the intent to cause such violation . . .” TCPA violations will result in “an additional penalty not to exceed $10,000.” For the FCC to hold a person liable for this civil forfeiture penalty, that person must receive proper notice from the FCC of her/his/its apparent liability and be afforded an opportunity for a hearing before the FCC or an Administrative Law Judge.

Generally speaking, this civil forfeiture penalty would afford the FCC greater latitude to punish those who intentionally violate the TCPA. In fact, the bill mandates that the FCC submit an annual report to Congress detailing the FCC’s enforcement of, and punishment for, TCPA violations that occurred in the preceding year.

Other Notable Provisions of the TRACED Act

Beyond TCPA penalties, the TRACED Act includes several other notable provisions:

STIR/SHAKEN Authentication Software: To authenticate the source of calls and prevent unnecessary robocalls, the TRACED Act requires telecommunications service providers to implement Secure Telephone Identity Revisited (“STIR”) and Signature-based Handling of Asserted Information Using toKENs (“SHAKEN”) software to help consumers identify spoofed calls.
Interagency Working Group: The Attorney General and Chairman of the FCC are directed to convene an interagency working group “to study Government prosecution of violations of [the TCPA],” and review possible TCPA enforcement actions.
Information Sharing Regarding Robocall and Spoofing Violations: Within 18 months of enactment of the TRACED Act, the FCC would be tasked with implementing regulations that create a process that “streamlines the ways in which a private entity may voluntarily share with the [FCC] information relating to [TCPA violations].”
FCC to Report Robocall Violations to the Attorney General: The Chief of the Enforcement Bureau for the FCC must provide evidence of “willful, knowing, and repeated robocall” violations to the Attorney General and publish a report related to TCPA enforcement.

What the TRACED Act’s TCPA Penalties and Provisions Mean for Businesses

While the TRACED Act has not yet been signed into law, if and when it is, it will result in significant ramifications for businesses. First, the TRACED Act would increase potential TCPA penalties for intentional violations of the statute and afford the FCC significant discretion with respect to enforcing such penalties. Given its focus on rulemaking, the TRACED Act would force the FCC to continuously make and monitor TCPA-related rules, causing the TCPA landscape to periodically shift more than it does already. This will, inevitably, lead to an even greater number of TCPA lawsuits than we see already. We will continue to monitor this legislation and provide follow up blog analysis in the future.

If you are interested in learning more about this topic or require assistance in connection with TCPA compliance for your business, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

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The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

New York Enacts New Telemarketing Law

December 6, 2019 by David Klein

December 6, 2019

This week, Governor Andrew Cuomo signed a bill enacting the Nuisance Call Act, a telemarketing law aimed at curbing the receipt of unwanted commercial telephone calls by New York residents. The law is intended to build upon the State’s Do-Not-Call Law, which went into effect in 2001.

How does the new telemarketing law attempt to curb abusive telemarketing practices?

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New Mobile Operating System Targets Unsolicited Telemarketing Calls

September 27, 2019 by David Klein

September 27, 2019

Apple Inc. has released a new operating system for its mobile devices that is likely to have a significant effect on the telemarketing industry. Among the features included in the new operating system, iOS 13, is one that is intended to provide users with the ability to effectively eliminate their receipt of unwanted telemarketing calls and other robocalls.

No more telemarketing calls?

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