FTC Plans National Do-Not-Call List

The Federal Trade Commission — indifferent to the fact that 25 states and counting maintain do-not-call lists — wants to develop a national registry of its own.

The proposal complicates an already confusing situation, leaving more questions than answers. For example: Who will pay the $3 million the FTC said it would need to maintain the file, consumers or telemarketers?

The FTC hopes to resolve that issue — and others — during its public comment period which runs through March 29. “We're looking for guidance on the issues,” said FTC spokeswoman Cathy MacFarlane.

But in a signal that the FTC already may have made up its mind on the cost issue, MacFarlane noted that most states charge telemarketers for the service, and the FTC indicated last year that it would offer its service free to consumers through an 800 number.

Another problem is that the FTC's proposal does not pre-empt state registries. This means marketers would have to deal with dozens of state lists and the existing FTC registry, a company-specific file required under the Telephone Consumer Protection Act of 1991. And Direct Marketing Association members also have to use the DMA's Telephone Preference Service.

“The proposal addresses many of the issues that have faced the industry in the past couple of years,” said Matt Mattingley, a spokesman for the American Teleservices Association (ATA). “It seems, however, that the FTC's solution to some of the problems is to add more legal requirements, instead of enforcing those already in effect. I think once forced with the reality of implementing such a huge, top-down solution, the FTC will have to re-evaluate its role and the capabilities it intends to offer.”

In what the ATA referred to as the most “imaginative” part of the proposal, the FTC plans to offer consumers the opportunity to opt out of commercial telephone solicitations, but to indicate their willingness to be contacted by specific companies.

At press time, the DMA did not think a federal list was necessary, but was continuing to look into the issue.

“We do have a national list, and it's the DMA list,” said Jerry Cerasale, senior vice president of government affairs for the DMA. He was referring to the Telephone Preference Service file of just over 4 million names. “The way [the FTC's proposal] is written it doesn't pre-empt state laws, so it just becomes the 51st list.”

The DMA is expected to challenge the FTC on whether the registry and its rules would prohibit commercial speech.

“If the federal government enforces a do-not-call list, that means a marketer trying to sell something through commercial speech would be in violation of the law,” Cerasale said.

The DMA, in an apparent response to the proposal, has created a teleservices ethics committee, which will “serve as an industry watchdog” and enforce its telemarketing rules, Cerasale said.

Meanwhile, legislation establishing do-not-call lists has been introduced in Minnesota, Oklahoma and the state of Washington. And other states' legislatures are planning bills.

Announced in January, the FTC proposal would modify the Telemarketing Sales Rule, which protects consumers from unwanted telemarketing calls and prohibits deceptive sales calls.