DNC.com Monthly Compliance Update


	Featured Article: Cell Phone Calls: When Does "Express"REALLY Mean "Express"? State Holiday Alerts: State DNC Restrictions for August and September Compliance Information and FAQs: White papers, In-depth Articles, Webinars and more! Minnesota Drops State List in Favor of National DNC Florida Commissioner Files DNC Violation Suit Against Investment Company Dish Network Marketers Charged with Do Not Call Violations by FTC

	Having written recently in this space regarding the FCC's January 2008 ruling giving debt collectors the right to call cell phones, I think it's appropriate for me to provide an update on this issue. When last we visited this issue, the FCC had provided an interpretation of the following language (from its regulations implementing the Telephone Consumer Protection Act (TCPA)): No person or entity may initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 CFR 64.1200(a)(1) (emphasis added.) In response to a petition filed by ACA International, the FCC ruled that autodialed (and prerecorded) calls to wireless numbers "that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ?prior express consent' of the called party."The FCC concluded that under these circumstances: 1) the consumer has "knowingly released"his/her phone number; and 2) the call being made by a debt collector is part of "normal business communications."The combination of these two factors, at least in the context of debt collection calls, amounts to (at least according to the FCC) "prior express consent." Enter the United States District Court for the Northern District of California. On May 20th, 2008, this Court issued a preliminary decision regarding the case of Leckler v. Cashcall, wherein Tricia Leckler had sued Cashcall for making debt collection calls to her cell phone using an autodialer and prerecorded messages without her consent. Both parties had moved for partial summary judgment on the question of whether Cashcall violated the TCPA when it placed telephone calls to Ms. Leckler's cell phone number using an automatic dialing system and prerecorded messages. The Court recognized that its answer to this question hinged on the propriety of the FCC's January 2008 ruling. The Court pointedly did NOT accept the propriety of the FCC's ruling, finding instead that the FCC's construction of prior express consent was both "manifestly contrary to the [TCPA] and unreasonable, because it impermissibly amended the TCPA to provide an exemption for . . . ?implied' consent and flew in the face of Congress' intent."	In other words, the FCC was just plain wrong when it gave debt collectors the right to call cell phone numbers (using autodialed or prerecorded calls) when those numbers were provided to the entity responsible for the debt collection call during the transaction that resulted in the debt. The Court found that "in order for the exemption to apply, the called party must expressly consent not only to receiving telephone calls, but to receiving calls made by a caller using an autodialer or prerecorded message." To make this restrictive ruling even clearer, it's important to point out that Ms. Leckler had written a letter to Cashcall in which she stated "I appreciate you contacting me as soon as possible on my cell phone."(Yes, you read that correctly!) The CA Court ruled that since Ms. Leckler did NOT say "call me via autodialer and/or prerecorded message on my cell phone,"Cashcall was prohibited from employing either technology in calling her wireless device. Where does this leave the industry? First of all, we know that the FCC's debt collection ruling has been overturned by one Federal District Court, and that this Court ruling applies to calls made into the Northern District of California. The FCC's ruling, however, still applies (at least in all jurisdictions other than Northern California) - however, there is now a very compelling precedent that will enable plaintiff's in other jurisdictions to seek to overturn the FCC's ruling. In other words, Leckler should give pause to those entities using autodialers and/or prerecorded messages to attempt to collect on outstanding debts. What about calls made for purposes other than debt collection? The FCC's January 2008 ruling was, arguably, a limited one that applied only to debt collection calls - attempting to apply it to other types of standard telemarketing may therefore be problematic. And it would appear certain that the CA District Court would apply the same calculus to standard telemarketing calls that it did to debt collection calls. Alas, once again, as we have seen so often in the teleservices legal arena, the waters have been muddied. Stay tuned . . . in the meantime, the conservative approach would be for debt collection firms to suppress cell phones from automated dialing devices, and working with third-party data experts such as Contact Center Compliance to ensure that real-time data is being used and proper tracking is in place is recommended.

	Read articles with an in-depth look at the details behind compliance changes, review FAQs on top compliance questions, and watch video of compliance webinars and ATA hosted seminars. Available now at: www.DNC.com.

	The following holiday restrictions have been verified for the months of August and September: Outbound calling is prohibited in Rhode Island on Monday, August 11, 2008 in observance of Victory Day. Outbound calling is prohibited in Alabama, Louisiana, Rhode Island and Utah on Monday, September 1, 2008 in observance of Labor Day.

	Join Contact Center Compliance for a free Webinar on ADAD, EBR, B2B, and DNC (the Alphabet Soup of Compliance). Date: Wednesday, Sept. 10th. Time: 10:00 AM - 11:00 AM PDT Space is limited! Reserve your set now at: https://www1.gotomeeting.com/register/840362664

	Minnesota Drops State List in Favor of National DNC: As of July 9th, 2008 the state of Minnesota discontinued maintenance of a separate state Do Not Call list. All numbers already on its list are in the process of being imported into the national Do Not Call list. All new consumer requests are being redirected to the NDNC as are teleservices companies looking to register for the now discontinued state list. Florida Commissioner Files DNC Violation Suit Against Investment Company: For allegedly violating Florida's Do Not Call laws a company in Central Florida is facing a suit filed by Florida Agriculture and Consumer Services Commissioner, Charles H. Bronson. The suit claims that between last year and earlier this year Whetstone Investment Network made 7 or more calls to Florida residents on the state's Do Not Call list. The company is facing an injunction prohibiting them from making any future calls to residents on the list and up to $10,000 in fines for each call to prohibited phone numbers. Dish Network Marketers Charged with Do Not Call Violations by FTC: For calling numbers on the National Do Not Call Registry and illegally abandoning calls while marketing Dish Network Programming, two telemarketing companies have agreed to pay $95,000 under the terms of court orders announced by the Federal Trade Commission.

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