Making Sense of the
the Do Not Call Telemarketer Registry
The top consumer protection issue
of the year must be the popularity of the federal and state telemarketer
“Do Not Call” registries. The federal registry is
being created by the U.S. Federal Trade Commission (FTC) and contains
more than 51 million household telephone numbers. At the state
level, the Wisconsin telemarketer registry contains just over
1.1 million household telephone numbers.
Both laws are being challenged by
telemarketers, and some state officials are concerned the federal
government may attempt to pre-empt the stronger state law with
the weaker federal law.
Federal Court Challenges
The most recent federal court decision as this
column went to press is the 10th U.S. Circuit Court of Appeal’s
October 7, 2003, decision in Denver, Colorado, to overturn a lower
federal court decision that the federal “Do Not Call”
list violates the telemarketer’s free-speech guarantees
under the First Amendment of the U.S. Constitution. The lower
federal court had determined on September 29, 2003, that telemarketers’
had a greater right to solicit consumers than the FTC’s
right to “prevent abusive and coercive sales practices and
to protect consumer privacy.” The 10th Circuit, in a substantial
victory for consumers registered on the list, ruled the consumers’
interest outweighed the telemarketers’ interest.
Just a few days before, an Oklahoma
federal judge ruled the FTC lacked the authority to create the
list. The next day Congress passed a bill giving the FTC the authority
and President Bush promptly signed the bill into law. Of course,
all this occurred as the federal “Do Not Call” list
was supposed to take effect on October 1, 2003.
State Court Challenge
At the state level, the Wisconsin Realtors Association,
the Wisconsin Newspaper Association, and several others filed
suit in Dane County Circuit Court to challenge the state “Do
Not Call” administrative rules. They allege the Department
of Agriculture, Trade & Consumer Protection’s rules
to implement the state law are too broad. State Consumer Protection
Administrator Jim Rabbitt rejected the claim and told Consumer
Checkpoint, “We are optimistic the Wisconsin law will be
upheld by the circuit court.”
Federal Pre-Emption of the Stronger
State Law. The Wisconsin “Do Not Call” registry is
thought to be tougher than federal law. The federal law allows
a telemarketer to continue calling you for up to 18 months after
you had your last business relationship with him or her, and up
to 90 days after you made an inquiry to the telemarketer’s
business. The state law provides that you can only be called by
a telemarketer who has a current agreement to provide goods or
services to you. Governor Doyle, state law author Senator Jon
Erpenbach (D–Middleton), and other Republican and Democratic
state officials are concerned the federal government will try
to essentially overturn the state law.
Stay tuned as this controversy continues.
In the meantime, both federal and state regulators will enforce
these two laws against telemarketers who improperly call consumers
on the “Do Not Call” lists.