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November 2003
Making Sense of the Battle Over
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.

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