2 Join Call for Preemption of State Telemarketing Rules

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Two organizations seek federal preemption of telemarketing rules in Florida, Indiana and Wisconsin, joining ongoing challenges in New Jersey and North Dakota, according to public documents released this week.


The Federal Communications Commission issued notices Dec. 7 indicating that Consumer Bankers Association seeks preemption of state rules in Indiana and Wisconsin while National City Mortgage Co., Cleveland, challenged Florida rules. The petitions test the FCC's stated position that federal telemarketing law "almost certainly" preempts state law regarding interstate calling in cases where state and federal law differ.


The FCC said it would consider preemption issues on a case-by-case basis. The three petitions revealed last week include:


· National City Mortgage is challenging a Florida rule banning prerecorded telemarketing calls without exceptions for calls to existing customers. FCC rules prohibit prerecorded telemarketing calls except where consumers have an existing business relationship with the caller.


· Consumer Bankers Association, Arlington, VA, is challenging Indiana's definition of existing business relationships, which both federal and Indiana rules exempt from no-call lists. The association argues that Indiana's definition is stricter than the federal one. The federal definition includes consumers who made inquiries in the past three months or purchases in the past 18 months. The Indiana rule does not.


· Consumer Bankers Association also is appealing Wisconsin's definition of existing business relationships, arguing that Wisconsin doesn't exempt calls to certain categories of consumers who are included in the federal definition of existing customers. Wisconsin's exemption applies only to current, ongoing customers, not those who have made inquiries or one-time purchases as does the FCC.


Other organizations have challenged state telemarketing laws on the grounds that they are inconsistent with federal law. The American Teleservices Association is contesting New Jersey's definition of existing business relationships, arguing that it also is too restrictive and applies only to ongoing or "established" customers.


An automated prerecorded message provider, ccAdvertising, is challenging North Dakota's ban on prerecorded telemarketing calls because it does not exempt charity, political and survey calls as the FCC does.


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