Dish Network Charged With "Do Not Call" Telemarketing Violations

Consumers who have signed up for the National Do Not Call Registry (and anyone who has had a peaceful dinner interrupted by a ringing phone and a once-in-a-lifetime offer) can take solace in the announcement of two small victories in the seemingly unending war against annoying and unlawful telemarketers.

A federal lawsuit filed Wednesday accuses Dish Network (formerly EchoStar) of calling numerous consumers who have placed their phone numbers on the National Do Not Call Registry, and of using “robocalls” -- which deliver prerecorded telemarketing messages when consumers answer their phones -- in violation of the the Telemarketing Sales Rule, according to a Press Release from the Federal Trade Commission (FTC). The complaint was filed by the FTC and the attorneys general of California, Illinois, Ohio, and North Carolina.

In another small victory against excessive and unsolicited telemarketing, Verizon Wireless announced this week that it has settled a lawsuit with a Utah organization that had flooded Verizon customers with calls promoting a movie -- to the tune of 500,000 calls over a 10-day period -- according to the Los Angeles Times.

The National Do Not Call Registry allows you to choose whether to receive telemarketing calls, either at home or on your cell phone. Most telemarketers have to stop calling your number once it's been on the do-not-call list for 31 days. Learn more: National Do Not Call Registry.

• FTC Press Release on the Lawsuit Against Dish Network (FTC.gov)
• Read the Complaint: U.S. v. Dish Network L.L.C. [PDF file]
• Reuters: U.S. Accuses Dish of Violating Do-Not-Call List
• L.A. Times: Two Little Victories for Telemarketing Haters
• National Do Not Call Registry
• What is Telemarketing Fraud? (FindLaw)
• Special Consumer Protections: Telemarketing (FindLaw)

Fight Club Abuse Exposed in Texas School for the Disabled; Fight Clubs and Ultimate Fighting Championship Test Local Laws

Residents at a Corpus Christi, Texas school for the disabled were forced by school employees to participate in "fight club" style battles. As Texas fights to reign in neglect and abuse in its institutions for the disabled, other states including North Carolina have begun to enforce laws that regulate fighting events beyond the traditional boxing.

The Dallas Morning News reports that employees of the Corpus Christi State School filmed fights which they prompted between profoundly disabled residents over a span from 2007 into 2008. Corpus Christi Police Capt. Tim Wilson stated that he had "heard of isolated incidents before, but what's most appalling is that it's obvious this is organized." As the Dallas Morning News notes, this comes at a time when Texas has already come under heat from the Department of Justice regarding systemic abuse and widespread civil rights abuses at its schools for the disabled.

On the same day that officials acknowledged evidence of the fights, the Texas Senate unanimously passed an emergency measure that will establish an ombudsman to audit and investigate injuries and deaths in the state's 13 institutions for the disabled. According to the Dallas Morning News, the measure also calls for security cameras in all the schools, as well as fingerprinting, background checks, and random drug tests for all employees.

Outside the realm of disabled individuals under state care, organized fighting events continue to test the boundaries of state criminal laws, sporting regulations and accepted entertainment.
 
Last week, the Burlington Times News reported that a man in Melbane, North Carolina became the first to be charged with violating North Carolina's law regulating mixed martial arts fighting events. North Carolina added kickboxing, mixed martial arts matches and toughman events to its regulation of boxing events. Lannie Wells Jones Jr. has been charged with running unregulated Ultimate Fighting Championship-style fights involving teens at his tattoo parlor, the Torture Chamber.

Ultimate Fighting Championship (UFC), the widely promoted mixed martial arts fights, seen by some as inspiring home made blood sport, itself still tests legal boundaries in many states. As the Nashville Business Journal reported, Tennessee recently became the 37th state to legalize UFC events.

In other places, including the state of New York, as reported by New York Magazine, UFC remains illegal. In Quebec, where UFC events have been staged in the past, the Toronto Sun recently reported that organizers of a sold out April UFC event are scrambling for a fix after Quebec's provincial government made clear that local regulations prohibit many moves allowed by UFC rules, such as knee and elbow strikes and attacking an opponent who is down.

• Criminal Law FAQ (provided by Gulas & Stuckey, P.C.)
• Guardianship of Incapacitated or Disabled Persons (FindLaw)
• Legislature face-off at hand over Texas' schools for disabled (Dallas Morning News)
• December 2008 Report from US DOJ to Texas Governor Rick Perry re Investigation of Texas Schools [pdf]
• The UFC® Fact Sheet (UFC)

 

Review Sites Under Fire: Useful Consumer Tools or a Plague of Unfairness to Businesses and Professionals?

Most people have used an online consumer review site at some point, whether it be to check out what others thought about the latest gadget, a new restaurant down the street, or obtaining the services of a professional, such as an optometrist, dentist, lawyer, doctor, plumber, etc.. The proliferation of review sites online has made it pretty easy to find somebody's take on just about any consumer product or service need in existence.

However, recently there has been some backlash at various review sites by the businesses and/or professionals being reviewed. The AP reports that some doctors have even taken the unusual step of getting their patients to sign waivers preventing them from posting negative comments online.

In favor of limiting online reviews, the AP noted one argument that:

"'Consumers and patients are hungry for good information' about doctors, but Internet reviews provide just the opposite, contends Dr. Jeffrey Segal, a North Carolina neurosurgeon who has made a business of helping doctors monitor and prevent online criticism."

Segal's North Carolina company, Medical Justice, provides doctors with a standardized waiver agreement to present to patients. Those patients who decide to sign agree not to post online comments about the doctor, "his expertise and/or treatment", whereas those who decline can be advised to seek medical services elsewhere.

Not surprisingly, operators of review sites tend to view the matter quite a bit differently, as exemplified by statements made by John Swapceinski, co-founder of RateMDs.com:

"They're basically forcing the patients to choose between health care and their First Amendment rights, and I really find that repulsive," Swapceinski said.

He said he's planning to post a "Wall of Shame" listing names of doctors who use patient waivers.

The fact of the matter is, however, that businesses or individuals suing consumer review Web sites face an uphill battle. Web sites are protected under federal law against being sued for publishing third-party content. Specifically, Section 230 of the Communications Decency Act provides that: "No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." This doesn't provide sites with blanket immunity for whatever gets thrown up on them, of course, but when it comes to a third-party individual's own, honestly expressed opinions online, it's pretty close.

Because the intent of Congress in passing the law was "to promote the continued development of the Internet and other interactive computer services and other interactive media," and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation", lawsuits against the operators of review sites often don't get very far and can just be a drain on a business's financial resources.

Lastly, if a review site's users are anonymous, as is the case with RateMDs.com, this can make it an even tougher task to try and pursue legal action for a negative online review, even if the professional/business has some kind of waiver agreement (RateMD.com has refused to take any reviews down based on waivers). However, what seems clear at this point in the development of the Web, is that a growing number of people are starting to ask whether the value being placed on free speech online should begin to give way to some push toward online responsibility. On the other hand, hopefully, we won't have to start signing waivers before getting served our dinner out!

• AP: Docs seek gag orders to stop patients' reviews
• San Francisco Chronicle: Dentist sues over negative Yelp review
• Washington Times: D.C. bar fights consumer Web site
• San Francisco Chronicle: Web 2.0 defamation lawsuits multiply
• What does a person have to prove to win a slander or libel claim? (provided by The Law Offices Of N. Trey Pettlon, III)
• East Bay Express: Yelp and the Business of Extortion 2.0
• The Huffington Post: Is The Yelp Controversy Overblown? (www.huffingtonpost.com)
• Solidifying Immunity For Interactive Computer Service Providers Under the Communications Decency Act (FindLaw)

1 in 31 Adults in the US Corrections System: Report Urges Increased Focus on Community Corrections

The Pew Center for the States released a report today showing that as of 2007, 1 in 31 American adults (7.3 million) were in the American correctional system. With this number largely constituted by an exploding number of people on parole or probation, the report urges increased emphasis on community corrections strategies.

Last February, the Pew Center released a report showing that 1 in 100 American adults was in jail or prison. According to this year's report, more than double that number is within the corrections system but out on parole or probation. Despite the fact that a vast majority of the corrections system population live on the outside, the report found that 90% of state corrections dollars are spent on prisons. The report cites research indicating that large spending on prisons yields decreased detterence of crime. Many incarcerated offenders, according to the report, pose little threat to public safety and could be much more economically held accountable for their crimes without imprisonment.

The report argues that community supervision strategies, where benefits per dollar are much larger, must be expanded, not cut, despite current financial constraints. At a time when states face gaping budget shortfalls, the report urges that each state could benefit from increased emphasis and spending on community corrections.

Such spending dilemmas come at a time when many states face over-strained prison systems that soon, if that haven't already, will burst beyond reasonable capacity. In an example of the financial choices posed by the Pew Center's report, North Carolina faces an enormous budget shortfall, an overwhelmed prison system, and proposed slashing of spending on community corrections. As reported by Raleigh Durham's WRAL, North Carolina Governor Beverly Perdue is considering halving state spending on community based programs (from about $20 million to about $10 million).

Officials in states with overstrained prison systems wish to avoid the fate of their counter-parts in California, where (as reported by the San Francisco Chronicle) a panel of federal judges recently ordered the potential release of tens of thousands of inmates in order to bring state prison conditions up to constitutional minimums. South Carolina's The State reports that S.C. Corrections Department Director Jon Ozmint has prepared plans for early release, if necessary, of non-violent offenders to help to stem South Carolina's budget woes. According to the New Hampshire Union Leader, New Hampshire legislators are debating increased community correction emphasis to cushion looming cuts to prison budgets.

• One in 31: The Long Reach of American Corrections (Pew Center on the States)
• One in 100: Behind Bars in America 2008 [pdf] (Pew Center on the States)
• Strengthen Community Corrections (Pew Center on the States)
• Some Md. agencies squeezed despite federal stimulus (Baltimore Sun)
• Citing Cost, States Consider End to Death Penalty (New York Times)
• Do Longer Sentences Mean Less Crime? (provided by The Umansky Law Firm)
• Fed. Judges Set to Order Massive Prisoner Release in California (FindLaw's Common Law)

 

Applying for Unemployment Benefits Online? Might Hit a Snag

Electronic unemployment filing systems have been crashing in three states or more in recent days as thousands of recently jobless Americans seek benefits, according to an AP report. This comes on the heels of a Reuters story indicating that private-sector employers unloaded 693,000 jobs in December. That figure is based on a report by ADP Employer Services, which further reflects that the employment situation is significantly worse than expected and dims the prospects for an upcoming jobs report, as well.

Economists surveyed by Reuters had, on average, predicted a loss of 473,000 private-sector jobs in December, significantly less than the actual figure. The AP story indicates that currently about 4.5 million Americans are collecting jobless benefits, a 26-year high, which is probably putting an excessive and unexpected strain on the electronic systems.

Alarmingly, an official with a company that developed the job-loss report said he still expected a little more than 2 million U.S. job losses over the next year. These are hardly the first worrying reports regarding unemployment and benefits. In October 2008, various stories surfaced about dwindling unemployment funds in some states. All in all, it seems that as many states states reel from the impact of the ailing economy, as well as their own budget crunches, these problems could re-surface at any time.

Although the AP story indicates that other states are adjusting their systems so that they do not fall victim to the same electronic claims problems, as one worker who lost his job in November said, "It's a bad sign for North Carolina's economy when you've got so many people trying to get into the system and it crashes."

• Private job losses mount in December (Reuters)
• North Carolina Jobless Claims Crash State's Web Site (Huffington Post)
• State unemployment claim systems overwhelmed (Yahoo! News)
• Unemployment Insurance Q&A (FindLaw)
• State Unemployment Insurance Benefits (U.S. Department of Labor)
• Some State Unemployment Funds Drying Up (CNN.com)
• Employee Rights: Wages and Benefits (FindLaw)
• Employee Rights: State and Federal Employment Laws (provided by Neil Flaxman, P.A.)
• Losing a Job: Your Rights (FindLaw)

BofA in $8.4B Rescue Deal to Help Countrywide Customers

Bank of America, the new owner of Countrywide Financial, has announced an $8.4 billion settlement under which homeowners in 11 states could see mortgage relief through lowered interest rates and reduced principals. The deal -- a response to lawsuits in which a number of states accused Countrywide of questionable home mortgage lending practices -- could provide relief to as many as 400,000 Countrywide mortgage holders.

The Nationwide Homeownership Retention Program for Countrywide Customers, announced Monday, will be put in place by December 1, 2008, and will offer $8.4 billion in loan adjustments to Countrywide mortgage holders in Arizona, California, Connecticut, Florida, Idaho, Illinois, Maryland, North Carolina, Ohio, Texas, and Washington. Under the program, Countrywide mortgage servicers will undertake a "proactive loan modification process" for borrowers who are (or are likely to become) delinquent, including adjustment of total mortgage payments "targeted to equate to 34 percent of the borrower's income," and other loan modifications "to ensure annual principal and interest payments increase at levels with minimal risk of payment shock," according to a Countrywide Press Release.

• Press Release: Bank of America Announces Nationwide Homeownership Retention Program for Countrywide Customers
• Fact Sheet: Bank of America's Nationwide Homeownership Retention Program for Countrywide Customers
• Attorneys General Press Releases: California | Florida | Illinois
• Reuters: BofA in $8.6 Bln Settlement Over Countrywide Loans
• Houston Chronicle: Countrywide Deal May Help 30,000 Texas Homeowners
• Chicago Tribune: Mortgage Q&A for Illinois Residents
• How to Avoid Foreclosure (FindLaw)
• State-Specific Information on Foreclosure (FindLaw)
• Real Estate Center: Foreclosure (FindLaw)

Court: Virginia Anti-Spam Law Unconstitutional

Virginia's highest court has ruled that a state law prohibiting the mass sending of unsolicited emails ("spam") is an overly broad restriction on free speech, a decision that overturns the criminal conviction of a North Carolina man once known as one of the country's most notorious spammers.

In 2004, Jeremy Jaynes was convicted and sentenced to nine years in prison based on charges that, on three separate occasions, he sent more than 10,000 unsolicted emails to America Online subscribers over a 24-hour period, a violation of the "unsolicited bulk email" provision of the Virginia Computer Crimes Act. On Friday, the Virginia Supreme Court struck down the law, ruling that it is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution." The decision reverses Jaynes's conviction, which in 2004 was the first felony spam conviction in the U.S., according to the Washington Post.

• Read the Virginia Supreme Court Decision [PDF file]
• Washington Post: Virginia Anti-Spam Law Overturned, Spammer Walks
• CNET News: Why Virginia is Right to Overturn Spam Conviction
• PC Magazine: Va. Law Struck Down; Spam Kingpin Goes Free
• You've Got Spam (FindLaw)
• Spam Q&A (FindLaw)

Federal Minimum Wage Increase Takes Effect

Effective today, the federal minimum wage is now $6.55 per hour -- up from $5.85 -- and a number of states' minimum wages will see a corresponding increase. Today's seventy-cent hike in the federal minimum wage is the second of three provided for in the Fair Minimum Wage Act of 2007. The third increase will take place on July 24, 2009, when the rate will rise to $7.25 per hour.

States that link their minimum wage laws with the federal rate -- including North Carolina, Texas, and Virginia -- also adopt the new $6.55/hour rate starting today. (Check minimum wage laws in your state). But Reuters reports that "more than half of U.S. state governments have raised minimum wages on their own above the federal standard, with a handful tying increases to annual inflation, an important criterion as higher energy, food and healthcare costs have cut into earnings."

• U.S. Department of Labor Press Release on New Federal Minimum Wage
• State Minimum Wage Laws (FindLaw)
• Reuters: Minimum Wage Set to Rise, But Views Vary
• CNNMoney.com: Minimum Wage Hike Kicks In
• Employee Rights: Wages and Benefits (FindLaw)

North Carolina Legislature Apologizes for Slavery

The state of North Carolina's legislature has joined those of Maryland and Virginia in approving a resolution apologizing for slavery.  Senate Joint Resolution 1557 was approved by both the North Carolina House of Representatives and North Carolina Senate.  An excrept from the resolution reads as follows:

SECTION 1.  The General Assembly issues its apology for the practice of slavery in North Carolina and expresses its profound contrition for the official acts that sanctioned and perpetuated the denial of basic human rights and dignity to fellow humans.

SECTION 2.  The General Assembly urges schools, colleges, and universities, religious and civic institutions, businesses and professional associations to do all within their power to acknowledge the transgressions of North Carolina's journey from a colony to a leading State, to learn the lessons of history in order to avoid repeating mistakes of the past, and to promote racial reconciliation.

SECTION 3.  The General Assembly calls on all North Carolinians to recommit their State, their communities, and themselves to the proclamation of their nation's Declaration of Independence and their State Constitution that "all persons are created equal and endowed by their Creator with certain inalienable rights" – to work daily to treat all persons with abiding respect for their humanity and to eliminate racial prejudices, injustices, and discrimination from our society.

In addition the North Carolina House of Representatives approved House Joint Resolution 1311.  An excerpt from this resolution is:

The General Assembly formally apologizes for the injustice, cruelty, and brutality of slavery, cites its historical role in perpetuating slavery and racism, and expresses its profound regret for the practice of involuntary servitude in this State and for the many hardships experienced, past and present, on account of slavery.

Learn more:

• House Vote Makes Apology for Slavery Official (Newsobserver.com)
• North Carolina Senate Joint Resolution 1557 (Approved by NC House and Senate)
• North Carolina House Joint Resolution 1311 (Approved by NC House)
• Information on Maryland and Virginia Resolutions (FindLaw)

FDA: Dog Deaths Related To Improperly Tested Pet Food

 The Food and Drug Administration ('FDA') is expected to release a critical report this week concerning Diamond Pet Food dog food that has reportedly been linked to many deaths and illnesses of dogs.

According to The State, a South Carolina newspaper, the FDA investigation found that Diamond "improperly tested, or failed to test, corn shipments for a deadly fungus during the weeks before it shipped food that killed dozens of dogs last month."

• FDA Finds Dog Food Not Properly Tested
• Dog Law
• Diamond Pet Food Recalled Due to Aflatoxin  (FDA Recall Notice)