The Consumer Protection & Antitrust Bureau: an Overview
| Fecha | 01 Enero 2004 |
| Año de Publicación | 2004 |
2004 Spring, 38. The Consumer Protection & Antitrust Bureau: An Overview
Spring 2004, Volume 45, Number 1
The Consumer Protection and Antitrust Bureau ("the Bureau") of the Office of the Attorney General was first established in 1970 by passage of the "Regulation of Business Practices for Consumer Protection" (more commonly referred to as the Consumer Protection Act) (EN1). The Bureau is responsible for ensuring that the Consumer Protection laws of New Hampshire are enforced, and that trades and businesses operating within the State of New Hampshire conform to governing statutes (EN2). The Act not only protects consumer-to-business transactions, but also, in many instances, business-to-business consumer transactions as well (EN3).
The Bureau is responsible for the investigation, regulation, and enforcement of the Consumer Protection Act and Antitrust laws, and also for more than thirty other statutes. These statutes include enforcing the Fair Debt Collection Act, the Health Club Act, the Land Sales Full Disclosure Act, and the Condominium Act, some of which will be discussed in this article. One of the lesser-known and more interesting statutes also falling under the Bureau's jurisdiction requires promoters and ticket agents to disclose lip-synching in musical performances prior to the ticket sale (EN4). Also lesser-known, but more practical, is a statute that requires Cable Franchises to notify their customers once a year of their right to "communicate their views" to the cable company and to the Bureau (EN5). Although a fair number of antitrust cases arise annually, typically in the form of multi-state actions, the majority of the Bureau's caseload comes in the form of consumer-oriented issues.
The Administrative Prosecutions Unit ("the APU") is an arm of the Bureau. The APU is responsible for regularly investigating and prosecuting professional misconduct cases before state licensing boards. As you will learn later in this article, many of the cases handled by the APU involve significant issues of public safety and protection; as such, the APU is a vital part of the Bureau.
This article will outline the multiple functions of the Bureau. First, it will address direct services offered to consumers through education, outreach, and mediation. Next, it will illustrate the prosecutorial and enforcement powers of the Bureau and recent criminal and civil litigation. It will describe the regulatory role of the Bureau and the authority of the APU. Lastly, it will review recently enacted consumer related legislation.
Part of protecting consumers from unfair and deceptive business practices is educating and empowering consumers so that they can protect themselves. The more educated consumers are about consumer law, the less likely they are to become victims of consumer fraud. To this end, the Bureau publishes the N.H. Consumer's Sourcebook ("Sourcebook") (EN6). The Sourcebook is available at no cost to consumers and provides a host of helpful information and tips for participating in today's marketplace. Additionally, the Bureau maintains an informational website that contains the complete Sourcebook as well as press releases, instructions for filing a complaint, consumer alerts, brochures, and other consumer related updates and news. Complaint forms and other registration forms can be downloaded from the Bureau's website at www.doj.nh.gov/consumer. Also provided on the website is a link to the Federal Trade Commission's Do Not Call Registry.
The Bureau presents educational outreach programs to a variety of community groups with a focus on New Hampshire's senior citizens. Programs are also available for high school students. The Bureau often partners with local police departments or other agencies to present these programs. In 2002, with the support of the Bureau's volunteers, the Bureau offered over twenty outreach programs to area groups (EN7). Fifteen of these presentations were to senior citizens, a population often targeted by predatory businesses. Presentations to senior citizens typically focus on identifying legitimate solicitations, reducing the risk of identity theft, and telemarketing issues. Presentations to high school students typically cover topics such as purchasing used cars, cyber shopping, tenant's rights, and building good credit. Since presentations are tailored to fit the needs of the group, the Bureau can effectively ascertain where the group is most vulnerable and then educate the group to lessen that vulnerability. The Bureau welcomes the opportunity to present outreach programs and encourages the reader to advise any appropriate groups of our availability.
Generally, consumer issues are introduced to the Bureau through a consumer complaint. In most instances, a consumer calls the "hot line" (EN8) and speaks to a consumer advocate (EN9). On average, the Bureau receives more than 20,000 telephone calls per year. Callers are advised that for the Bureau to handle a formal consumer complaint, it must be in writing. Oftentimes the consumer advocate is able to assist the caller immediately and no formal written complaint is necessary. However, if further attention is needed, this is accomplished either by a letter from the consumer with the necessary information, or by submission of a completed complaint form. In either instance, the received complaint is first reviewed by a paralegal. The paralegal is responsible for the initial assessment of the complaint and determines whether the complaint is something that the Bureau is capable of handling and/or mediating, or whether it should be referred to another New Hampshire agency, another state, small claims court, a private attorney, or kept on file for purposes of tracking patterns of business practices. Once the paralegal reviews the complaint, an attorney evaluates the substance of the complaint and the recommendation of the paralegal. The complaint undergoes a final evaluation by the Bureau Chief and it is then entered into the computer's database for coding and further processing. It is not unusual for the Bureau to receive more than twenty written complaints per day.
The Bureau's in-house mediation program is the primary method of resolving consumer complaints. The Bureau's fifteen volunteers accomplish the mediation by telephone and/or letter. If the case is being referred to the mediation program, the business receives a copy of the complaint and is afforded an opportunity to respond. The program is voluntary on the part of the businesses; however, it is generally well received and cooperation and participation is high. When the response from the business is received, a mediator evaluates the case and determines whether mediation is possible. If the business has agreed to participate in the mediation, the mediator helps to facilitate an amicable resolution.
In the last two years, over 3,300 cases were referred to the mediation program and the Bureau recovered $473,433 in money, goods, or services for consumers through the mediation program.
In the event a consumer complaint is not coded for mediation, but rather is referred to another agency or small claims court, the consumer receives the appropriate information and, if possible, the names of individuals to contact to assist in resolving their claim. There are a small number of complaints received for which the Bureau cannot provide any resolution or referral. In those instances, consumers are informed that their information will be kept on file to track the business's practices. Regardless of the ultimate coding of a complaint, most consumers also receive helpful brochures.
In 2002, the top five complaints received by the Bureau were problems with used car dealerships, building and home contractors, credit cards, telephone billing, and consumer purchases. In 2003, the top five complaints involved used car dealerships, debt collection, telemarketing, home contractors, and mail order merchandise. Notably, 2003 also saw a marked increase in the number of complaints dealing with Internet purchases both directly from companies and through Internet auction websites.
The Consumer Protection Act allows the Bureau a broad range of options if violations of the Act are suspected. Administrative Enforcement by issuing an Administrative Subpoena is one vehicle available (EN10). If the Bureau has reason to believe that trade or commerce in violation of the Act is being or is about to be conducted, an Administrative Subpoena can be issued. The subpoena can require the production of documents and/or testimony and require a personal appearance from the business at the Office of the Attorney General (EN11). The Bureau uses the Administrative Subpoena quite frequently. In 2002 and 2003, the Bureau issued subpoenas to twenty-eight businesses, an all-time high. In most instances the pending consumer complaints were resolved, and in many cases, the businesses agreed to change their business practices to protect future consumers.
The Bureau also has the authority to file in Superior Court for temporary and permanent injunctions against businesses (EN12). Usually the Bureau refrains from using this action unless all other more informal approaches have been rejected or ignored by a business. A related tool, which is regularly used by the Bureau, is an Assurance of Discontinuance (EN13). This is when a business meets with the Bureau in either an informal setting or after receiving an Administrative Subpoena. In these instances, the Bureau does not go so far as to file an Injunction, but rather...
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