Markets Wired

The manufacturer of Rascal Scooters, used by disabled and senior consumers with limited mobility, will pay $100,000 to settle Federal Trade Commission charges that it illegally called millions of consumers who had chosen to avoid unwanted telemarketing calls by listing their phone numbers on the national Do Not Call Registry. The FTC alleges the firm illegally used phone numbers gathered from sweepstakes entry forms to contact consumers whose numbers are on the Registry.

The FTC’s complaint charges scooter manufacturer Electric Mobility Corporation and its owner Michael Flowers with making more than three million illegal sales calls since 2003 to consumers on the Do Not Call Registry who had entered the company’s “Win a Free Rascal” sweepstakes. According to the FTC, in small print under the part of the sweepstakes form provided for the entrant’s phone number, EMC reminded consumers to list their numbers so the company could contact them if they were “the next lucky winner.”

EMC encourages consumers to enter its sweepstakes through direct mailing, newspapers, and television advertisements. The FTC charged that its conduct violated both the FTC Act and the Do Not Call provisions of the Telemarketing Sales Rule.

The FTC’s Telemarketing Sales Rule allows a company to call a consumer on the Do Not Call Registry for up to 18 months if it has an “established business relationship” with the consumer and he or she has not asked the firm to stop calling. However, under the Rule, a company may not rely on a completed sweepstakes entry form to establish a business relationship with a consumer. In fact, the FTC consistently has said that simply obtaining a consumer’s phone number – as EMC did with its sweepstakes – does not establish a relationship that would exempt it from the Do Not Call rules.

The order settling the FTC’s charges bars EMC from using sweepstakes entries as the basis for claiming an established business relationship with any consumer. The order also includes monitoring and reporting requirements to ensure that EMC complies with its terms.

In addition, the order imposes civil penalties against both EMC and Flowers for their alleged violation of the FTC Act. Flowers will pay $100,000, and EMC is subject to a $2 million penalty, which is suspended based on its inability to pay. If EMC is found to have misrepresented its financial condition, the full penalty will become due immediately.

The Commission vote to approve the proposed consent decree was 5-0. The Department of Justice filed the proposed consent decree on behalf of the FTC in the U.S. District Court for the District of New Jersey on April 19, 2011. Copies of the final order can be found on the FTC’s website and as a link to this press release. It is subject to court approval.

The case was brought with the assistance of the Offices of the Attorneys General of the states of New Jersey and Washington, and the Wisconsin Department of Agriculture, Trade and Consumer Protection. Information for consumers about the Do Not Call Registry can be found here, and information about complying with the Telemarketing Sales Rule can be found here.

NOTE: This consent decree is for settlement purposes only and does not constitute an admission by the defendant that the law has been violated. Consent decrees have the force of law when approved and signed by the District Court judge.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them.  To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357).  The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,800 civil and criminal law enforcement agencies in the U.S. and abroad.  The FTC’s website provides free information on a variety of consumer topics.  “Like” the FTC on Facebook and “follow” us on Twitter.

(FTC File No. 062-3132)
(Rascal Scooters.final.wpd)