DNC Law
As 2002 comes to a close, Do Not Call (DNC) legislation
and rule making continue to be an important area
of focus for various states and the federal government.
Presently, 27 states have passed DNC laws, 6 of
which become effective in 2003. In addition, some
of these states are considering amending their existing
DNC statutes to impose further restrictions on telemarketers
and many of the states without DNC statutes have
DNC legislation pending. 2003 promises to be even
more active in terms of new legislative initiatives
concerning telemarketing and increased regulatory
action with respect to telemarketing activities.
Following is a brief overview of the federal and
state DNC initiatives.
FTC and FCC Proposals for National Do Not Call
Registry
The FTC and the FCC have issued notices of proposed
rulemaking regarding the creation of a national
DNC registry. Many in the industry continue to hope
that the FTC and FCC will coordinate their efforts
to insure that there is only one national registry.
The FTC's initial proposed amendments to the Telemarketing
Sales Rule (TSR) caused serious concern among businesses
that engage in telemarketing because the amendments
would, among other things, cover "upsells"
from inbound calls and further restrict the use
of predictive dialers. Likewise, calls to those
with whom the caller has an existing business relationship
would not be exempt from the DNC requirements. Moreover,
marketers would still be subject to the state DNC
laws, in addition to the federal rules, because
there would be no preemption of state laws. The
FTC is reconsidering some of its proposed amendments
and is expected to announce its new rule by the
end of this year. The rule would be implemented
six months thereafter. The FTC does not have jurisdiction
over telemarketing by telecommunications, banking,
airline, and insurance companies.
In September 2002, the FCC issued its notice of
proposed rulemaking regarding telemarketing. The
FCC, which does have jurisdiction over telemarketing
by telecommunications, banking, airline and insurance
companies, asked for comments on, among other things,
the establishment of a national DNC registry, preemption
of state laws, caller identification, calls to those
with whom the caller has an established business
relationship, predictive dialers, recorded messages,
and calls to cellular phones. The deadline for submission
of comments to the FCC was December 9, 2002. The
deadline for reply to those comments is January
8, 2003.
New and Amended State DNC Laws
Several states have new DNC laws that will become
effective in 2003. These laws generally prohibit
telemarketers from making telephone solicitations
to individuals who have registered with a state's
DNC list. Most statutes contain several exemptions
such as when a telemarketer has a prior or existing
relationship with an individual, when the individual
has consented to receive telemarketing calls, and
for certain regulated industries such as financial
institutions.
The following is a list of state DNC laws that
will become effective in 2003:
California (April 1, 2003)
Illinois (July 1, 2003)
Massachusetts (April 1, 2003)
Minnesota (January 1, 2003)
Oklahoma (January 1, 2003)
Wisconsin (January 1, 2003)
Oklahoma and Wisconsin are presently accepting
applications for registration. Telemarketers subject
to the DNC laws of these states are encouraged to
submit their applications immediately to avoid any
disruption of their telemarketing activities in
those states. As of December 12, 2002, Minnesota
did not have a mechanism in place for telemarketers
to obtain the DNC list.
The following is a list of states that have DNC
laws that are already in effect:
Alabama, Alaska, Arkansas, Colorado, Connecticut,
Florida, Georgia, Idaho, Indiana, Kansas, Kentucky,
Louisiana, Maine, Missouri, New York, Oregon, Pennsylvania,
Tennessee, Texas, Vermont and Wyoming.
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