States Seek Narrower No-Call Exemptions

The new year has brought attempts by lawmakers in three states to remove exemptions for political calls and, in one case, even charitable and existing-business-relationship calls.

Legislatures in Colorado, Kentucky and New Jersey are considering bills to ban politicians from calling consumers registered to no-call lists. The Colorado bill also would end the exemption for charity solicitation calls and require telemarketers to receive written permission from existing customers on the no-call list in order to make calls.

Such bills could have implications for the legal debate over the national no-call list, which the telemarketing industry has challenged by arguing that it unfairly targets commercial calls while excusing political and nonprofit calls. However, the attorney leading the industry's fight against the national list said last week that removing exemptions for political and charity calls wouldn't solve First Amendment problems with no-call lists.

“It's not a narrowly tailored solution,” said Bob Corn-Revere, lead counsel for the American Teleservices Association in its constitutional challenge to the national list. “It's government imposing its own solution rather than letting individuals decide.”

In New Jersey's version, the state would create a separate political no-call list, requiring consumers to register for this second list in addition to the state's existing one if they wished to stop political calls. Political organizations and candidates would have free access to the list, which they would obtain from the state Division of Elections.

Creating a separate list for political calls would remove the danger that the courts could declare political calls to be protected speech and thus invalidate the commercial no-call list along with the political one, state Assemblyman Jeff Van Drew said. He acknowledged that First Amendment problems could eventually sink the idea but said he thought the issue deserved debate.

Kentucky's proposal to deal with political calling is more limited than New Jersey's. It simply adds a new definition to the list of types of calls banned to people registered for the state's no-call list. The new definition covers only calls made to request a vote for or against a candidate, and it exempts calls made by candidates themselves or members of their “immediate family.”

Colorado's bill goes the furthest in eliminating exemptions from its no-call law, ending essentially all exemptions from the list, except when the caller has received express written permission to call an existing customer. Telemarketers also can call a customer 30 days after the customer has made an inquiry.

U.S. courts in the past have given more protection to political and charitable speech than to commercial speech, a practice validated by the Supreme Court. The government is empowered to regulate commercial speech insofar as to ensure that advertisers make truthful claims, but it can't regulate annoyances, Corn-Revere said.

No-call lists pose free-speech problems in that they affect only commercial speech and not political and charitable speech, Corn-Revere said. The industry supports the old telemarketing rules, under which consumers could choose to tell specific companies to stop calling.

“It's a good thing when the government doesn't discriminate against speakers,” Corn-Revere said. “The way to do that is to let consumers choose.”

However, supporters of fewer exemptions for no-call lists have noted that telemarketing industry advocates have used these arguments to create a no-win situation for no-call lists. One reason he filed the New Jersey bill, Van Drew Legislatures in Colorado, Kentucky and New Jersey said, was to call the bluff of political opponents of the state's commercial no-call list who used the exemption for political calls in their attempts to discredit the list.

Though Van Drew's co-sponsor for the political list is Assemblywoman Linda Greenstein, who was a driving force behind the creation of the state's commercial list last year, the idea hasn't caught much momentum in the legislature, he said.

“It hasn't really moved very much,” Van Drew said. “That has pretty much quieted down any criticism.”

Van Drew said he has used telemarketing and automated “robo-calls” in his campaigns in the past but that he wouldn't mind removing them in the future. Telemarketing is just one piece of political campaigns that typically also include radio, television, print and grassroots marketing, and its loss won't have much effect, he said.

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