Effective September 1, 2009, companies subject to FTC jurisdiction will not be able to make interstate prerecorded telemarketing calls to EBR consumers absent the prior express written agreement of the consumer. Effective December 1, 2008, any company that continues to make such calls must comply with new restrictions that will continue even after September 1, 2009 when prior express written consent of the consumer is mandatory.
Direct Marketing
California’s Financial Information Privacy Act Affiliate Sharing Provisions Narrowly Survive Complete Preemption
By Scott Carpenter on
On September 4, 2008, in American Bankers Association v. Lockyer, No. 05-17163, 2008 WL 4070308 (9th Cir. Sept. 4, 2008), the Ninth Circuit Court of Appeals revived part of the California Financial Information Privacy Act (“S.B. 1”), allowing consumers to opt-out of certain information-sharing activities between financial institutions and their affiliates. Previously, in the 2005 case American Bankers Ass’n. v. Gould, 412 F.3d 1081 (9th Cir. 2005), the Ninth Circuit ruled that the state statute was preempted by provisions of the Fair Credit Reporting Act (“FCRA”) regarding affiliate sharing of “consumer report” information. The recent 2-1 decision preserves consumers’ rights under California law to restrict affiliate data-sharing related to non-consumer report information.
Affiliate Marketing Rule Alert: Compliance Deadline is October 1, 2008
By Natalie Newman on
Section 214 of Fair and Accurate Credit Transactions Act (“FACTA”) was enacted to amend the Fair Credit Reporting Act (the “Act”) to give consumers the right to restrict certain entities from using certain information received from their affiliates to make solicitations to that consumer unless the consumer has been provided (1) “clear and conspicuous” notice that the consumer’s information will be shared for such purposes, and (2) an opportunity to opt out of having such information shared for such purposes.
On November 7, 2007, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Office of Thrift Supervision and the National Credit Union Administration issued a joint final rule (along with the Federal Trade Commission (FTC) and the Securities and Exchange Commission(SEC), which separately adopted and proposed, respectively, similar regulations) under the amended Act (the “Affiliate Marketing Rule” or “Final Rule,” codified at 12 C.F.R. Parts 41, 222, 334, 571 and 717) governing the use of specific consumer information obtained by covered entities from their affiliates for certain marketing purposes.
The Affiliate Marketing Rule became effective on January 1, 2008, and compliance by covered entities is required by October 1, 2008.
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Emerging Standards For Mobile Marketing
By Kristen J. Mathews on
Many B2C companies are beginning to explore marketing to consumers’ wireless devices using text messaging (“SMS,” or “short message service”) and MMS messaging (“Multi-media Messaging Service”). They may even target their promotions based on where the recipient is physically located using the wireless device’s GPS technology. They also may target their promotions to teens and tweens. What legal issues should companies be aware of as they navigate through this relatively new area?