Regulation of the Telemarketing Industry: State and National Do-Not-Call Registries

Congressional research reportFeb 24, 2004

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Order Code RL31642

CRS Report for Congress

Received through the CRS Web

Regulation of the Telemarketing

Industry: State and National

Do-Not-Call Registries

Updated February 24, 2004

Angie A. Welborn

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Regulation of the Telemarketing Industry: State and

National Do-Not-Call Registries

Summary

Until recently, companies that engaged in telephone solicitation or telemarketing

were required to maintain a list of consumers who ask not to be called, but there was

little or no federal oversight of these lists. Regulations recently promulgated by the

Federal Trade Commission and the Federal Communications Commission create a

nationwide do-not-call registry and require telemarketers to begin using the do-notcall lists later this year. In addition to the new national list, thirty-six states have

enacted laws that create some type of state-wide do-not-call registry.

This report will discuss current federal regulation of the telemarketing industry,

including the new regulations promulgated by the Federal Trade Commission and the

Federal Communications Commission, as well as state laws creating do-not-call

registries. Legal challenges to the do-not-call registry, including the decision by the

United States District Court for the Western District of Oklahoma finding that the

FTC lacked authority to establish the registry and the recent decision by the Tenth

Circuit Court of Appeals regarding the constitutionality of the list, will also be

discussed. Also addressed is the federal legislation (S. 1652, S. 1654, S. 1655 and

H.R. 3161) aimed at overturning the Oklahoma court’s decision, and other relevant

legislation (H.R. 395 and H.R. 526). This report will be updated as events warrant.

For additional information on federal telemarketing laws and what consumers

can do to prevent unwanted telemarketing calls, see CRS Report RL30763,

Telemarketing: Dealing With Unwanted Telemarketing Calls, by James R. Riehl.

Contents

Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Telephone Consumer Protection Act of 1991 . . . . . . . . . . . . . . . . . . . . 1

Telemarketing and Consumer Fraud and Abuse Prevention Act . . . . . . 2

Jurisdictional Distinctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

National Do-Not-Call Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Federal Trade Commission Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Federal Communications Commission Rules . . . . . . . . . . . . . . . . . . . . 4

Legal Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

FTC Authority to Implement Registry . . . . . . . . . . . . . . . . . . . . . . . . . . 6

First Amendment Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

States Laws Establishing Do-Not-Call Registries . . . . . . . . . . . . . . . . . . . . . 8

Recent Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Do-Not-Call Implementation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Telemarketing Relief Act of 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Legislation Introduced in Response to Court Order . . . . . . . . . . . . . . 11

Regulation of the Telemarketing Industry:

State and National Do-Not-Call Registries

Legal Framework

There are two major statutes that address telemarketing at the federal level. The

Telephone Consumer Protection Act, which is enforced by the Federal

Communications Commission (FCC), and the Telemarketing Consumer Fraud and

Abuse Prevention Act, which is enforced by the Federal Trade Commission (FTC).

Telephone Consumer Protection Act of 1991. The Telephone Consumer

Protection Act of 1991 directed the Federal Communications Commission to initiate

a rulemaking proceeding “concerning the need to protect residential telephone

subscribers’ privacy rights to avoid receiving telephone solicitations to which they

object.”1 The Commission was to develop regulations to implement “the methods

and procedures that the Commission determines are most effective and efficient” to

accomplish the purposes of the Act.

Under the Act, the FCC could have established a “single national database to

compile a list of telephone numbers of residential subscribers who object to receiving

telephone solicitations, and to make that compiled list and parts thereof available for

purchase.”2 However, the FCC initially chose to require businesses and persons

engaged in the telephone solicitation industry to maintain individual do-not-call lists,

rather than establishing a single national list. Under recent revisions to the rules

promulgated under pursuant to the Telephone Consumer Protection Act, the FCC

promulgated regulations to establish a nation wide do-not-call registry consistent

with regulations recently promulgated by the Federal Trade Commission.

The FCC’s initial rules required persons who initiate any telephone solicitation

to a residential telephone number to institute procedures for “maintaining a list of

persons who do not wish to receive telephone solicitations made by or on behalf of

that person or entity.”3 The rules also established minimum standards for

maintenance of such lists, including the establishment of a written policy which is to

be available on demand, the training of personnel engaged in telephone solicitation,

the recording of do-not-call requests, and disclosure of the identity of the telephone

solicitor.4 Do-not-call requests were to be honored for 10 years from the time the

47 U.S.C. 227(c)(1).

47 U.S.C. 227(c)(3).

47 CFR 64.1200(e)(2).

Id.

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request was made.5 Recent revisions to the FCC’s rules create a national do-not-call

registry to be coordinated with the Federal Trade Commission’s recently established

registry.

Telemarketing and Consumer Fraud and Abuse Prevention Act. The

Telemarketing and Consumer Fraud and Abuse Prevention Act directed the Federal

Trade Commission to “prescribe rules prohibiting deceptive telemarketing acts or

practices and other abusive telemarketing acts or practices.”6 The FTC was instructed

to include in the rules “a requirement that telemarketers may not undertake a pattern

of unsolicited telephone calls which the reasonable consumer would consider

coercive or abusive of such consumer’s right to privacy.”7

In response to this directive, the FTC promulgated the Telemarketing Sales

Rule.8 Under the original Telemarketing Sales Rule, it was an abusive telemarketing

act or practice for a seller to cause a telemarketer to initiate “an outbound telephone

call to a person when that person previously has stated that he or she does not wish

to receive an outbound telephone call made by or on behalf of the seller whose goods

or services or being offered.”9 Amendments recently promulgated by the Federal

Trade Commission include this original prohibition, and also make it an abusive

telemarketing act or practice to initiate any outbound telephone call to a person who

has placed his or her name and/or telephone number on the do-not-call registry

maintained by the Commission.10

Jurisdictional Distinctions. Two sets of regulations are necessary to fully

implement the do-not-call registry due to jurisdictional distinctions between the

Federal Trade Commission and the Federal Communications Commission. The

Federal Trade Commission, by statute, does not have jurisdiction over financial

institutions or common carriers, such as telephone companies.11 This jurisdictional

limitation means that the FTC’s telemarketing rules cannot be enforced against these

types of institutions. The Federal Communications Commission, however, under the

TCPA, has much broader jurisdiction over telephone solicitations in general. Under

the Act telephone solicitations are defined to include any “telephone call or message

for the purpose of encouraging the purchase or rental of, or investment in, property,

goods, or services, which is transmitted to any person,” thus, allowing the FCC to

enforce its regulations against entities who make telephone solicitation calls, but may

Id.

15 U.S.C. 6102(a)(1).

15 U.S.C. 6102(a)(3)(A).

16 CFR Part 310.

See prior versions of 16 CFR 310.4(b)(1)(ii).

16 CFR 310.4(b)(1)(iii)(A) and (B). See infra regarding the implementation of the

amended Telemarketing Sales Rule.

15 U.S.C. 46(a).

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not be subject to the Federal Trade Commission’s regulations due to the

Commission’s jurisdictional limitations.12

National Do-Not-Call Registry

Both the FCC and the FTC have promulgated regulations related to the

establishment of do-not-call lists. The original rules required persons or businesses

that engage in telephone solicitations to maintain do-not-call lists, but did not require

the establishment or maintenance of a central nation-wide do-not-call registry.13

However, recently promulgated regulations by the FTC, and complementary

revisions of the FCC’s rules, do establish a national do-not-call registry.

Federal Trade Commission Rules. As discussed above, the Federal Trade

Commission, acting under the authority of the Telemarketing and Consumer Fraud

and Abuse Protection Act, issued a final rule amending the Telemarketing Sales Rule

to create a national do-not-call registry late last year.14 While many provisions of the

new rule became effective March 31, 2003,15 the establishment and implementation

of the do-not-call registry was delayed pending the approval of funding by

Congress.16 Funding for the do-not-call registry was included in the Consolidated

Appropriations Resolution,17 and the FTC released a time line for registration and

implementation in March. Consumers were able to begin registering for the do-notcall list at the end of June, and as of October it will be illegal for telemarketers to call

numbers listed on the registry.18

On April 3, 2003, the FTC released a revised notice of proposed rulemaking to

amend the Telemarketing Sales Rule, adding a section regarding the imposition of

47 U.S.C. 227(a)(2).

The Federal Trade Commission and the Federal Communications Commission have

jurisdiction over different types of entities. For example, the Federal Trade Commission’s

regulations do not apply to common carriers, while the Federal Communications

Commission would have jurisdiction over common carriers such as telephone companies.

See 15 U.S.C. 45(a)(2); 47 U.S.C. 151 et seq.

The FTC announced the final rule on December 18, 2002. For more information see

[http://www.ftc.gov/bcp/conline/edcams/donotcall/index.html]. In addition to the creation

of a national do-not-call registry, the rule contains provisions related to the solicitation of

charitable donations, as mandated by the USA Patriot Act; new provisions on call

abandonment; provisions aimed at restricting unauthorized billing by telemarketers; and a

requirement that telemarketers transmit their telephone numbers, and if possible, their name

to a consumer’s caller ID service.

In response to a request from the Direct Marketing Association, the compliance date for

the call abandonment provisions of the amended rule has been extended to October 1, 2003.

68 FR 16414 (April 4, 2003).

H.J.Res. 2, Division B, Title V.

Pub. L. 108-7.

[http://www.ftc.gov/bcp/conline/edcams/donotcall/index.html].

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fees on telemarketers accessing the national do-not-call registry.19 The proposed

amendments would require telemarketers to pay an annual fee for access to the

national registry. The proposed fee is set at $29 per area code, with a maximum

annual fee of $7,250. Telemarketers could have access to up to five area codes for

free.

Under the new rule, it is an abusive telemarketing act or practice to initiate any

outbound telephone call to a person who has placed his or her name and/or telephone

number on the do-not-call registry maintained by the Commission.20 However, under

certain circumstances telemarketers will be allowed to call consumers who have

asked to have their names included on the do-not-call registry. For example,

telemarketers will be allowed to place calls to persons from whom they have obtained

“the express agreement, in writing, of such person to place calls to that person,” and

to persons with whom they have an established business relationship.21 Other exempt

calls include calls in which the sale of goods or services is not completed, and many

calls that are initiated by the consumer.22 Telemarketers calling to solicit charitable

contributions will not be required to comply with provisions related to the national

registry, but they will be required to keep company-specific lists and honor consumer

requests with regard to such lists.23

In addition to the exceptions noted above, the rule also includes a safe harbor

from liability whereby sellers or telemarketers will not be held liable for violations

that result from error if they have complied with certain requirements set forth in the

rule. They may take advantage of the safe harbor by establishing procedures, training

personnel in those procedures, and maintaining a list of persons who have asked not

to be called.24

Consumers will not be required to pay to have their numbers placed on the

registry, and a consumer’s number will remain on the registry for five years, or until

the consumer asks to have his or her number removed or changes phone numbers.

Telemarketers will be required to pay for access to the registry,25 and will be required

to purge their lists every three months to remove any telephone numbers that have

been added to the registry.

Federal Communications Commission Rules. In October 2002, the

Federal Communications Commission issued a Notice of Proposed Rulemaking

68 FR 16238 (April 3, 2003).

16 CFR 310.4(b)(1)(iii)(A) and (B). See infra regarding the implementation of the

amended Telemarketing Sales Rule.

16 CFR 310.4(b)(1)(iii)(B)(ii).

16 CFR 310.6.

16 CFR 310.6(a).

16 CFR 310.4(b)(3).

On April 3, 2003, the Federal Trade Commission released a revised notice of proposed

rulemaking regarding the imposition of fees on telemarketers using the national registry.

See 68 FR 16238 (April 3, 2003).

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seeking comment on whether its current telemarketing regulations, including those

related to company-specific do-not-call lists, should be revised “in order to more

effectively carry out Congress’s directives in the TCPA [Telephone Consumer

Protection Act]”.26 Unlike the Federal Trade Commission, the FCC did not publish

a proposed rule. The FCC instead sought comments on whether and how its current

rules should be modified. With regard to the current do-not-call regulations, the FCC

sought comment on the “overall effectiveness of the company-specific do-not-call

approach in providing consumers with a reasonable means to curb unwanted

telephone solicitations.”27 The Commission also sought comment on whether it

should revisit its earlier determination not to adopt a nationwide do-not-call

registry.28 The comment period for this proceeding ended on January 31, 2003.

On April 3, 2003, the Federal Communications Commission issued a further

notice of proposed rulemaking seeking comment on the Do-Not-Call Implementation

Act (H.R. 395), which required the Commission to issue final rules in the proceeding

discussed above within 180 days of its enactment,29 and to maximize consistency

with the Federal Trade Commission’s rules.30 In this proceeding, the Commission

sought comment on how it could maximize consistency with the FTC’s rules, and on

how “to harmonize the requirements of the Do-Not-Call Act with [the

Commission’s] statutory mandate in the TCPA [Telephone Consumer Protection

Act].”31

In accordance with the Do-Not-Call Implementation Act,32 the FCC adopted

revisions to its rules implementing the Telephone Consumer Protection Act on June

26, 2003.33 The revised rule appears to mirror the rule recently promulgated by the

Federal Trade Commission to create a national do-not-call registry. The registry will

be administered by the Federal Trade Commission, with enforcement coordinated

between the FCC and FTC.

67 FR 62667 (October 8, 2002). The NPR also seeks comment on new network

technologies that may allow consumers to avoid receiving unwanted telephone solicitations;

the Commission’s current regulations regarding the use of autodialers by telemarketers;

identification requirements; the use of artificial or prerecorded voice messages; time of day

restrictions; the current prohibition on unsolicited facsimile advertisements; and the

restrictions on calls to wireless telephone numbers.

Id.

See supra regarding current FCC regulations.

The Do-not-call Implementation Act was enacted on March 11, 2003. The Commission

is required to issue final rules prior to September 7, 2003.

68 FR 16250 (April 3, 2003).

Id at ¶ 6.

See infra regarding the Do-Not-Call Implementation Act.

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection

Act of 1991, Report and Order, CG Docket No. 02-278, adopted June 26, 2003.

[http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf].

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Legal Challenges

Immediately upon release of the FTC’s final rule, legal challenges were filed by

the Direct Marketing Association34 and the American Teleservices Association.35

The suits alleged that the FTC’s rule infringed on the telemarketers rights under the

First Amendment and violated the Equal Protection Clause of the United States

Constitution. The plaintiffs also argued that the FTC exceeded its statutory authority

in promulgating regulations establishing a national do-not-call registry and acted in

an arbitrary and capricious manner in so doing. Decisions were recently handed

down in both cases invalidating the do-call-registry on different grounds. These

cases are discussed separately infra.

FTC Authority to Implement Registry. On September 23, 2003, the

United States District Court for the Western District of Oklahoma held that the

Federal Trade Commission did not have the authority to promulgate a national donot-call registry.36 The court found that while Congress had expressly granted the

Federal Communications Commission the authority to create a do-not-call registry,37

such authority was not granted to the Federal Trade Commission. The FTC has the

authority, pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention

Act (TCFAP), to “prohibit deceptive . . . and other abusive telemarketing acts or

practices,”38 but, according to the court, this authority did not include the creation of

the do-not-call registry.

The court determined that Congress’ “express grant of authority to the FCC to

promulgate a do-not-call registry, together with the complete silence on the subject

in the TCFAP, makes plain that Congress has not given the FTC the authority that

it seeks to exercise here.”39 The court rejected the FTC’s argument that postpromulgation appropriations legislation granted it the authority to establish the donot-call registry, noting that such legislation did not “unequivocally grant the FTC

the authority under the TCFAP to promulgate a do-not-call registry,” but rather

“merely recognizes that the FTC has done so.”40

The Direct Marketing Association, along with U.S. Security, Chartered Benefit Services,

Global Contact Services, and Infocision Management Corporation, filed suit in the United

States District Court for the Western District of Oklahoma on January 29, 2003. Case No.

Civ. 03-122-W. The court denied the Direct Marketing Association’s motion for a

preliminary injunction on March 26, 2003.

The American Teleservices Association, along with Mainstream Marketing Services and

TMG Marketing, filed suit in the United States District Court for the District of Colorado

on January 29, 2003. Civil Action No. 03-N-0184.

U.S. Security, et. al., v. Federal Trade Commission, No. CIV-03-122-W (W.D. Okla. Sept.

23, 2003).

See 47 U.S.C. 227(c)(3).

15 U.S.C. 6102(a)(1).

U.S. Security, Slip Op. p. 12.

Id at 14. The FTC had relied upon the Consolidated Appropriations Resolution, P.L. 108(continued...)

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On September 24, 2003, the FTC filed a motion for a stay pending appeal of the

court’s order, as well as a notice of appeal. Several bills were also introduced in both

the House and Senate to grant the FTC the authority the court determined it lacked

to create a national do-not-call registry. On September 25, both the House and

Senate passed legislation granting the FTC explicit authority to implement and

enforce the do-not-call registry, effectively overturning the court’s order. These bills

are discussed infra.

The President signed H.R. 3161 on September 29, giving the FTC the authority

to implement and enforce the do-not-call registry, but the registry had already been

invalidated on other grounds on September 25. Despite congressional action

remedying the jursdictional questions regarding the FTC’s implementation of the donot-call registry, the constitutional concerns raised by the United States District Court

for the District of Colorado remain.

First Amendment Concerns. On September 25, 2003, the United States

District Court for the District of Colorado issued an opinion finding that the do-notcall registry, as implemented by the FTC, violated the First Amendment to the United

States Constitution.41 The court found that “the FTC, by exempting charitable

solicitors from the amended Rules’ do-not-call registry, has imposed a content-based

limitation on what the consumer may ban from his home.”42 The court took issue

with the distinction made between calls made on behalf of charitable organizations

and commercial calls, nothing that pursuant to the FTC’s rules, calls from charitable

organizations would “still ring through to the consumer, while commercial calls will

not.”43 The court determined that “[t]he mechanism purportedly created by the FTC

to effectuate consumer choice instead influences consumer choice, thereby entangling

the government in deciding what speech consumers should hear.”44

Based upon the determination that the do-not-call registry placed a significant

burden on commercial speech, the court went on to apply the Supreme Court’s

(...continued)

7, which authorized the Commission to use, as part of its funding, a certain amount derived

from fees sufficient to implement and enforce the do-no-call provisions of the Telemarketing

Sales Rule, and the Do-Not-Call Implementation Act (H.R. 395), P.L. 108-10, which

authorized the Commission to collect fees for the implementation and enforcement of a donot call registry.

Mainstream Marketing, et. al. v. Federal Trade Commission, 283 F. Supp.2d 1151 (D.

Colo. 2003). The Colorado court did not consider whether the FTC had the statutory

authority to implement and enforce the do-not-call registry as it had already determined that

the registry, as implemented, was constitutionally invalid.

Mainstream Marketing at 1163. For more information on the First Amendment

protections offered to commercial speech, see CRS Report 95-815, Freedom of Speech and

Press: Exceptions to the First Amendment, by Henry Cohen.

Id.

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Central Hudson test to determine whether the registry was constitutionally invalid.45

In applying the Central Hudson test, the court found that “the interest in preventing

abusive telemarketing practices [was] sufficiently substantial to justify a restriction

on commercial speech.”46 However, the court found that the do-not-call registry did

not “materially advance” this interest as required under Central Hudson because “the

registry creates a burden on one type of speech based solely on its content, without

a logical, coherent . . . reason supporting the disparate treatment of different

categories of speech.”47

On February 17, 2004, the United States Court of Appeals for the Tenth Circuit

reversed the lower court’s decision and held that the do-not-call registry “is a valid

commercial speech regulation because it directly advances the government’s

important interests in safeguarding personal privacy and reducing the danger of

telemarketing abuse without burdening an excessive amount of speech.”48 Unlike the

district court, the court of appeals did not find that the distinction between

commercial telemarketing calls and those on behalf of charities made the list

constitutionally invalid. In fact, the court used the limited applicability of the list as

a justification for upholding the regulations. The court found that in applying the

regulations only to commercial telemarketing calls the Commission had narrowly

tailored its restrictions on speech to address the government’s stated interests in

protecting privacy and protecting consumers from fraudulent and abusive

solicitations.49

States Laws Establishing Do-Not-Call Registries

To date, thirty-six states have enacted laws to establish some type of state-wide

do-not-call registry,50 and several others have considered such legislation.51 The state

See Central Hudson Gas & Electric v. Public Service Commission of New York, 447 U.S.

557 (1980). For more information on Central Hudson, see CRS Report 95-815, Freedom of

Speech and Press: Exceptions to the First Amendment and CRS Report RL31239,

Prohibiting Television Advertising of Alcoholic Beverages: A Constitutional Analysis, by

Henry Cohen.

Mainstream Marketing at 1164.

Id at 1168.

Mainstream Marketing Services v. Federal Trade Commission, No. 03-1429 (10th Cir.

Feb. 17, 2004).

The Tenth Circuit’s opinion can be found at

[http://www.ftc.gov/os/2004/02/040217dncappealopinion.pdf] In addition to the First

Amendment concerns, the court also addressed the issue of the FTC’s statutory authority to

promulgate regulations creating a national do-not-call registry and found that the

Commission had the authority to do so based on the broad statutory authority granted in the

Telemarketing Fraud and Abuse Prevention Act. Mainstream Marketing Services, Slip Op.

at 47 - 49.

Mainstream Marketing Services, Slip Op. at 20 - 21.

Prior to the creation of the national do-not-call registry, many states had enacted laws

creating state-wide do-not-call registries. See e.g., Alabama, Code of Ala. § 8-19C-2;

Alaska, Alaska Stat. § 45.50.475; Arkansas, A.C.A. § 4-99-404; California, Cal. Bus. &

(continued...)

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registries are similar to the new national do-not-call registry, and are generally

maintained by a division of the state government. At least two states - Maine and

Wyoming - do not maintain lists, rather telephone solicitors are required by state law

to use the list maintained by the Direct Marketing Association.52

Funding for the establishment and maintenance of the lists varies from state to

state, with some states requiring consumers to pay a nominal fee to have their

telephone number added to the do-not-call registry. The required fees vary by state.

For example, consumers in Georgia must pay $5 do have their numbers placed on the

do-not-call list for a period of two years, while consumers in Texas pay $2.25 to have

their numbers placed on the state list.53 Most states also require the telemarketers to

purchase the do-not-call list and require payment for periodic updates of the list. For

example, telemarketers in Oregon must pay $120 per year to obtain the state do-notcall list, while in Missouri, the charge is $600 per year, though telemarketers can pay

less if they want numbers from certain area codes.54 Generally, the laws do not allow

states to charge more than is required to establish and maintain the list. Fees may be

assessed on a sliding scale based upon the size of the telephone solicitation company.

Violations of the do-not-call laws generally lead to administrative penalties,

though in some states consumers may bring private rights of action to recover

damages.

(...continued)

Prof. Code § 17590; Colorado, 2001 Colo. HB 1405, to be codified at Col. Rev. Stat. § 6-1901; Connecticut, Conn. Gen. Stat. Ann. § 42-288a; Florida, Fla. Stat. § 501.059; Georgia,

O.C.G.A.§ 46-5-27; Idaho, Idaho Code § 48-1003A; Indiana, Ind. Code Ann. § 24.4.7;

Kentucky, K.R.S. § 367.46955; Louisiana, 2001 La. HB 175, to be codified at La. Rev. Stat.

45:844.11; Maine, 32 M.R.S. § 4690-A; Massachusetts, ch. 265 of the Acts of 2002, to be

codified at Mass. Gen. Laws § 159C; Missouri, § 407.1101 R.S.Mo.; New York, NY CLS

Gen Bus § 399-z; Oregon, ORS § 464.567; Pennsylvania, H.B. 1469, Session of 2001;

Tennessee, Tenn. Code Ann. § 65-4-405; Texas, Tex. Bus. & Com. Code Ann. § 43.001;

Wisconsin, Wis. Stat. § 100.52; and Wyoming, Wyo. Stat. § 40-12-302. The opinion of the

United States District Court for the District of Colorado did not address state do-not-call

registries, but could presumably be used to invalidate such registries on similar grounds if

upheld.

States that are considering, or have considered, legislation aimed at creating a do-not-call

registry include Delaware, District of Columbia, Hawaii, Iowa, Maryland, Michigan,

Nebraska, Nevada, North Carolina, Ohio, Rhode Island, South Carolina, Washington, and

West Virginia.

The Direct Marketing Association (DMA) is a trade association for telemarketers,

telephone solicitation companies, and direct mail companies. The DMA maintains a list of

persons who do not wish to receive direct mail advertising or telemarketing calls.

Consumers must contact the DMA to be placed on either list. For more information see

[http://www.the-dma.org].

Ga. Code Ann. §46-5-27; Tex. Bus. & Com. Code Ann. § 43.001.

Or. Rev. Stat. § 646.574; § 407.1098 R. S. Mo.

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Several states have recently enacted laws which adopt the national do-not-call

registry as the state registry, or to incorporate their lists with the national list.55 These

an other states may be able to transfer the information from their lists to the FTC’s

database before the national registry is provided to telemarketers. However, the

Federal Trade Commission has indicated that it may take up to eighteen months for

some state lists to be incorporated with the national do-not-call registry.56

Recent Federal Legislation

Do-Not-Call Implementation Act. Following the FTC’s issuance of the

final amendments to the Telemarketing Sales Rule discussed above, the

Commission’s authority to promulgate regulations imposing fees on telemarketers

for use of the do-not-call list was at issue. Representatives Tauzin and Dingell

introduced H.R. 395 to authorize the Commission to promulgate regulations

“establishing fees sufficient to implement and enforce the provisions relating to the

‘do-not-call’ registry of the Telemarketing Sales Rule.”57 The Commission would

be authorized to collect fees for fiscal years 2003 through 2007.

The bill would also require the Federal Communications Commission to issue

a final rule in its current rulemaking proceeding under the Telephone Consumer

Protection Act not later than 180 days after the enactment of this Act.58 Following

the promulgation of the FCC’s rules, both the FCC and the FTC would be required

to issue a report to the House Committee on Energy and Commerce and the Senate

Committee on Commerce, Science, and Transportation analyzing the telemarketing

rules promulgated by each agency; noting any inconsistencies between the rules; and

making proposals to remedy such inconsistencies.59 Each agency would also be

required to issue annual reports regarding the effectiveness of the rules through fiscal

year 2007.60

H.R. 395 passed the House on February 12, 2003, and the Senate on February

13, 2003. It was presented to the President on February 27, and signed on March

11.61

Telemarketing Relief Act of 2003. H.R. 526, the Telemarketing

Relief Act of 2003 would require certain federal agencies to issue rules that are

substantially similar to the Telemarketing Sales Rule promulgated by the Federal

For more information on how state lists will be coordinated with the national list, see

<www.ftc.gov/bcp/conline/edcams/donotcall/statelist.html>.

68 FR 4580, at 4641 (January 29, 2003).

H.R. 395, 108th Cong., § 2.

H.R. 395, 108th Cong., § 3. See infra regarding the FCC’s Notice of Proposed Rulemaking

initiated late last year.

H.R. 395, 108th Cong., § 4(a).

H.R. 395, 108th Cong., § 4(b).

Pub. L. 108-10.

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Trade Commission within 90 days of the enactment of the Act.62 The agencies

required to issue such rules are the Securities and Exchange Commission, the

Commodity Futures Trading Commission, the Board of Governors of the Federal

Reserve System, the Federal Home Loan Bank Board, and the National Credit Union

Administration Board.63 The Act would also require the Federal Communications

Commission to promulgate rules similar to the Telemarketing Sales Rule which

would be required to apply to “telephone solicitations” as defined under section

227(a) of the Communications Act of 1934.64

The rules issued by the agencies would be required to prohibit the “making of

any telephone call for telemarketing purposes to a telephone number included on the

registry established and published by the Federal Trade Commission under the

Telemarketing Sales Rule.”65 Exceptions to the rules would include calls made for

charitable, political opinion polling or other political activities, or other nonprofit

activities; calls made with the consumer’s prior written or verbal permission; calls

made primarily in connection with an existing debt of the consumer or contract with

the consumer that has not been paid or performed; or calls made by one business to

communicate with another business.66

The bill was referred to the House Committee on Energy and Commerce, in

addition to the Committees on Financial Services and Agriculture, and subsequently

to various subcommittees. No additional action has been taken.

Legislation Introduced in Response to Court Order. On September 24,

at least four bills were introduced in response to the order issued by the United States

District Court for the Western District of Oklahoma finding that the FTC lacked the

authority to establish a do-not-call registry. S. 1652, S. 1654, S. 1655, and H.R. 3161

all expressly grant the FTC the authority to implement and enforce a national do-notcall registry under the Telemarketing and Consumer Fraud and Abuse Prevention

Act,67 and ratify the do-not-call provision of the Commission’s Telemarketing Sales

Rule (TSR).68 S. 1661, introduced on September 25, would also give the FTC the

authority to implement a list of consumers who request not to receive telephone sales

calls.

H.R. 526, 108th Cong., § 2(a).

H.R. 526, 108th Cong., § 2(b).

As defined in 47 U.S.C. 227(a)(3), the term telephone solicitation means “the initiation

a telephone call or message for the purpose of encouraging the purchase or rental of, or

investment in, property, goods, or services, which is transmitted to any person, but such term

does not include a call or message (A) to any person with that person’s prior express

invitation or permission, (B) to any person with whom the caller has an established business

relationship, or (C) by a tax exempt nonprofit organization.”

H.R. 526, 108th Cong., § 2(d).

H.R. 526, 108th Cong., § 3.

15 U.S.C. 6102(a)(3)(A).

16 C.F.R. 310.4(b)(1)(iii).

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On September 25, both the House and Senate passed H.R. 3161 to grant the

FTC the authority to implement and enforce the do-not-call registry and ratify the donot-call provision of the TSR. The President signed the bill on September 29.69

P.L. 108-82.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.