National No-Call Registry May Spark State Suit

A Wisconsin state lawmaker who called the federal no-call list's exemption for calls to past customers a “joke” said last week that the state might sue to retain its right to keep its own no-call laws on the books.

Democratic state Sen. Jon Erpenbach, sponsor of the Wisconsin no-call list, said he is concerned about the Federal Communications Commission's efforts to pre-empt state laws, at least regarding interstate calls. Wisconsin's no-call law, which took effect Jan. 1 and has 1.4 million phone numbers registered, is more restrictive in some ways than the federal rules, he said.

Wisconsin provides an exemption for existing business relationships, but only for current customers. Federal no-call rules exempt calls to consumers who have made a purchase from a company within the past 18 months.

That leaves the door open for companies to call consumers who dropped their service and switched to another, so long as they call within 18 months of the consumer switching, Erpenbach said.

“If you change your carrier or credit card, you're doing it for a reason,” he said. “Your former company doesn't need 18 months to win you back.”

According to the FCC rules enacted June 26, the federal rules represent a “floor” that states can match or make more, but not less, restrictive for intrastate calls, or calls that originate and end within the state. For interstate calls, the FCC wrote, “more restrictive state efforts to regulate interstate calling would almost certainly conflict with our rules.”

Erpenbach said the state is prepared to sue over that issue.

An official with the Wisconsin Department of Justice confirmed that the state attorney general's office was examining its options and that it supported Erpenbach and the state's no-call program. The department is advising state consumers to sign up for both the state and federal lists at this time, the official said.

The FCC did not respond to a call for comment.

If Wisconsin files a legal challenge to the national no-call rules, it will have some odd company. The American Teleservices Association, Direct Marketing Association and several private co-plaintiffs have pending lawsuits challenging the national list.

Wisconsin itself is being sued for its state no-call list by state trade associations, who argue that the state's no-call law had been meant to block out-of-state telemarketing calls, not those made by local businesses.

From the perspective of industry, and several states that exempt local businesses from their no-call laws, the problem with the FCC rules is that they effectively wipe out exemptions currently enjoyed by many business categories under state laws. For example, in Mississippi, where the state list took effect July 1, exemptions exist for real estate brokers, car dealerships, insurance agents and newspapers.

Mississippi exempted these categories because they are “community interest” businesses, said Nielsen Cochran, central district commissioner for the state Public Service Commission. The businesses are particularly important in rural communities, where a single provider in each category may be present in some towns, he said.

These businesses often act as a welcome wagon for newcomers to a community, Cochran said. They ease the transition for new residents by offering them needed services when they arrive.

“My concern is that these types of business aren't the telemarketers causing the problems, confusion and harassment,” Cochran said. “I am concerned local entities can't use the phone to welcome folks to small communities.”

Cochran said the state plans to cooperate with the FCC and may adjust its no-call rules when the state legislature returns to session in January. It also plans to share data on its no-call list with the federal registry.

Many states have come out in support of the national no-call program, or at least expressed benevolent indifference. One of the latter is Kentucky, where state officials think their state no-call law is as strong as or stronger than the federal rule, said Brian Wright, spokesman for the Kentucky attorney general's office.

The state law exempts nonprofit, political and existing business relationship calls, Wright said. The state's main concern was that federal regulators might lack the resources to pursue every single no-call complaint.

However, the state had no problem with the 18-month exemption — it has received no complaints about calls for existing business relationships — and doesn't understand why other states are upset, he said.

“We have no problem with the federal list,” he said. “We just don't think we need it.”

Nevertheless, it's clear that concern exists on the part of state attorneys general about the pre-emption issue, at least before the FCC issued its ruling. In comments to the FCC before the ruling, the National Association of Attorneys General wrote that it opposed “any effort to invade the sovereign power of the states by purporting to pre-empt any existing or future state do-not-call laws.”

The letter was written on behalf of attorneys general in 48 states, including Kentucky. Since then, the NAAG has been silent on the issue, and an association spokeswoman did not return a call or e-mail for comment.

Erpenbach, who still echoes NAAG's original sentiment, said the states that offered exemptions to some classes of calls should have been allowed to keep them and that Wisconsin should be allowed to keep its law as well.

“Congress should have left this alone,” he said. “Each state is different.”

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