Tech.gov: Don't Call Me, Really

In 2003, the national Do Not Call Registry was born and we all got the option of respite from annoying telemarketing calls. If you registered, you could avoid calls peddling time-share condos in Florida, newspaper subscriptions, and other such unsolicited intrusions into your quiet evening.

But the registry has an important loophole that allows some calls to continue: If you have an existing relationship with a company, they can still call you. It's not a wholly unreasonable exception. If my bank wants to call me, offering me a lower rate on loans or credit cards, I might want to take that call.

However, the way the government defines an existing relationship is a bit lax. Just buying a single item from a store is enough to establish an existing relationship, and that gives that business the right to call me for the next 18 months. If I call up an insurance company asking about lower rates, the firm then has the right to call me for the next three months, even if I don't end up buying anything. Also, your registration expires after 5 years, so you must re-register.

Some states have acted to close this loophole: They have their own laws preventing companies from calling you that would have an exemption under the national rules, due to an established relationship. A couple of other states basically prevent any business from using prerecorded voice messages to call you. Prerecorded telemarketing calls are covered by the national rules, but they have the same exceptions as regular telemarketing calls.

Not surprisingly, numerous allied groups, including telemarketers, banks, charities, and retailers, have filed motions with the Federal Communications Commission asking that these state laws be struck down.

States vs. the Feds

At the heart of the battle over the Do Not Call Registry is disagreement over complex and often thorny legal boundaries that involve the power of states versus the power of federal government.

The firms that want to strike down the state laws argue that the national rules--and the FCC, which maintains them--have ultimate authority to regulate interstate telemarketing. They claim that adhering to multiple state rules places an undue burden on the companies making the calls, and that a state has the right to regulate only calls within that state, not between states. That's an argument analogous to the federal--not state--government's right to regulate interstate commerce, which was used to strike down Utah's antispyware law, for example.

Not surprisingly, state attorneys general disagree. They argue that unless Congress enacts a law that expressly overrules state laws in a given area, or the states themselves give up the right to create their own laws, then the Constitution protects a state's right to make laws for its residents. Because it was the FCC and the Federal Trade Commission, not Congress, that enacted the Do Not Call Registry and its accompanying exceptions, they maintain that they can pass laws that supplement or contradict that national registry.

The firms arguing for preemption use the law Congress did pass, 1991's Telephone Consumer Protection Act, to bolster their case. That's the law that led to the FCC creating any rules in the first place, including the Do Not Call Registry itself.

However, the text of the law (now part of U.S. Code Title 47) does not seem to indicate to this layperson that Congress did actually preempt states from making their own rules in this area.

One can always argue that there's implied intent since Congress went to all the trouble of creating a national law and gave the FCC the right to make these rules. Regulation of interstate commerce may end up explicitly used to bolster the case, as well. Given the amount of action there's already been over this--and the amount of money at stake--you can bet that arguments will be made, both to the FCC and to Congress if that fails.

Check out the Electronic Privacy Information Center for more information on the case, the companies that have filed petitions, and responses from states and the FCC.

Theory vs. Practice

I appreciate the difficulty of and need to separate state and federal powers in a fair and consistent way. But at the end of the day, I want my state to give me as much protection as it can. My sympathy for companies navigating different or conflicting state laws is low, I must admit, especially since these companies want to bug me with unsolicited offers.

Although I wouldn't go so far as to require written consent before a company I habitually do business with is able to call me to tell me about products or services I may be interested in, I would definitely like a much narrower definition of "established relationship" than that single purchase that's in the books. Stores that I always shop in, the bank with which I do business year round, my insurance company, and the like--those are established relationships. My impulse buy at the mall (because a store I never otherwise enter was having a sale) shouldn't count.

And frankly, I don't want to make it any easier for any company to call me using a prerecorded message, regardless of whether we have an existing relationship. Those calls are worse than normal telemarketing calls; the automation means that companies can deluge me with them, whereas normal telemarketing calls are restricted by the number of people that companies can employ for the purpose. If any state wants to recognize that difference and make it tougher for businesses to automate telemarketing, more power to them.

Bottom line: These rules at the state and federal level exist to protect consumers; and we need to make sure decisions over jurisdiction respect that.

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