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The Virginia Telephone Privacy Protection Act Virginia State Bar Annual Meeting Corporate Counsel Section CLE Program June 18, 2004.

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Presentation on theme: "The Virginia Telephone Privacy Protection Act Virginia State Bar Annual Meeting Corporate Counsel Section CLE Program June 18, 2004."— Presentation transcript:

1 The Virginia Telephone Privacy Protection Act Virginia State Bar Annual Meeting Corporate Counsel Section CLE Program June 18, 2004

2 The Virginia Telephone Privacy Protection Act (VTPPA) Va. Code §§ through (2001) Va. Code §§ through (2001) 2004 Va. Acts ch. 202, 224 (effective July 1, 2004) 2004 Va. Acts ch. 202, 224 (effective July 1, 2004)

3 Applicability of the VTPPA Telephone Solicitation Calls to Any: Telephone Solicitation Calls to Any: Natural persons residence in Virginia Natural persons residence in Virginia Wireless telephone with a Virginia area code Wireless telephone with a Virginia area code Solicitation Calls Include Offering or Advertising Any Property, Goods or Services for Sale, Lease, License or Investment Solicitation Calls Include Offering or Advertising Any Property, Goods or Services for Sale, Lease, License or Investment

4 Applicability of the VTPPA VTPPA Does Not Apply To: VTPPA Does Not Apply To: Calls soliciting contributions for political candidates or parties Calls soliciting contributions for political candidates or parties Calls soliciting contributions for charitable organizations Calls soliciting contributions for charitable organizations Calls conducting surveys Calls conducting surveys Other calls that are not sales calls Other calls that are not sales calls

5 VTPPA Provisions Calling time restrictions - Va. Code § Calling time restrictions - Va. Code § Required disclosures - Va. Code § Required disclosures - Va. Code § Required transmission of caller ID - Va. Code § Required transmission of caller ID - Va. Code § Required message for abandoned calls - Va. Code § Required message for abandoned calls - Va. Code § Do Not Call provisions - Va. Code § Do Not Call provisions - Va. Code §

6 VTPPA Provisions Private right of action - Va. Code § Private right of action - Va. Code § Investigative authority - Va. Code § Investigative authority - Va. Code § Governmental enforcement/Civil penalties - Va. Code § Governmental enforcement/Civil penalties - Va. Code § Definitions - Va. Code § Definitions - Va. Code §

7 Calling Time Restrictions Calls allowed between 8:00 a.m. and 9:00 p.m. Calls allowed between 8:00 a.m. and 9:00 p.m. Calls allowed at other times if prior consent obtained from the called person Calls allowed at other times if prior consent obtained from the called person

8 Required Disclosures Individuals First and Last Name Individuals First and Last Name Name of Entity on Whose Behalf the Call is Being Made Name of Entity on Whose Behalf the Call is Being Made Disclosures Must be Made Promptly Upon Contact Disclosures Must be Made Promptly Upon Contact

9 Transmission of Caller ID Info Telephone Number of Telephone Solicitor Telephone Number of Telephone Solicitor Name of Telephone Solicitor – When Available Name of Telephone Solicitor – When Available May Substitute Name and Customer Service Number of Entity on Whose Behalf the Call is Being Made May Substitute Name and Customer Service Number of Entity on Whose Behalf the Call is Being Made Must be Able to Make Do Not Call Request Must be Able to Make Do Not Call Request May Not Intentionally Block Caller ID May Not Intentionally Block Caller ID

10 Message for Abandoned Calls Prerecorded Identification Message Prerecorded Identification Message Whenever Live Representative Not Available Within Two Seconds of Greeting Whenever Live Representative Not Available Within Two Seconds of Greeting Must State Name and Telephone Number of Entity on Whose Behalf the Call is Being Made Must State Name and Telephone Number of Entity on Whose Behalf the Call is Being Made Must be Able to Make Do Not Call Request Must be Able to Make Do Not Call Request

11 Company-Specific Do Not Call Provisions May not call number when someone at that number has asked not to be called May not call number when someone at that number has asked not to be called Request may be made to telephone solicitor or entity on whose behalf the call is being made Request may be made to telephone solicitor or entity on whose behalf the call is being made Request may be made by telephone or in writing Request may be made by telephone or in writing Request must be honored for 10 years Request must be honored for 10 years

12 National Do Not Call Registry May not call number on National Do Not Call Registry maintained by the FTC May not call number on National Do Not Call Registry maintained by the FTC Violation of state and federal law to call number on National Do Not Call Registry Violation of state and federal law to call number on National Do Not Call Registry

13 Exemptions to Do Not Call Provisions Prior Express Invitation or Permission Prior Express Invitation or Permission Signed, written agreement authorizing specific entity to call specific number Signed, written agreement authorizing specific entity to call specific number Established Business Relationship Established Business Relationship Purchase or transaction within 18 months preceding the call Purchase or transaction within 18 months preceding the call Inquiry or application within 3 months preceding the call Inquiry or application within 3 months preceding the call Personal Relationship Personal Relationship Family member, friend or acquaintance of individual telephone solicitor Family member, friend or acquaintance of individual telephone solicitor Exemptions Do Not Apply If a Specific Do Not Call Request is Made Exemptions Do Not Apply If a Specific Do Not Call Request is Made

14 Affirmative Defense for Violations of Do Not Call Provisions Established and implemented Established and implemented With due care With due care Reasonable practices and procedures Reasonable practices and procedures To effectively prevent calls in violation To effectively prevent calls in violation Includes using version of National Registry Includes using version of National Registry In accordance with federal regulations In accordance with federal regulations Obtained no more than 3 months prior to call Obtained no more than 3 months prior to call

15 Private Right of Action Injunction Injunction $500 for Each Violation $500 for Each Violation Up to $1,500 for Willful Violations Up to $1,500 for Willful Violations Reasonable Attorneys Fees and Costs Reasonable Attorneys Fees and Costs General District and Small Claims Court General District and Small Claims Court Circuit Court for Injunctions Circuit Court for Injunctions

16 Investigative Authority Commissioner of the Department of Agriculture and Consumer Services Commissioner of the Department of Agriculture and Consumer Services Office of Consumer Affairs Office of Consumer Affairs Attorney General of Virginia Attorney General of Virginia Civil Investigative Demands Civil Investigative Demands National Do Not Call Registry Database National Do Not Call Registry Database

17 Governmental Enforcement Attorney General Attorney General Commonwealths Attorneys Commonwealths Attorneys County, city or town attorneys County, city or town attorneys

18 Governmental Enforcement Injunctions Injunctions Damages for aggrieved persons of $500 for each violation Damages for aggrieved persons of $500 for each violation Civil penalties of up to $1,000 for each willful violation Civil penalties of up to $1,000 for each willful violation Reasonable expenses incurred in investigating and preparing the case Reasonable expenses incurred in investigating and preparing the case Attorneys fees Attorneys fees

19 Thank you.


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