Issue
Will states continue to enact legislation requiring telemarketers to maintain blanket state-level "do-not-call" lists in addition to the company-specific federally-mandated list required by the Telephone Consumer Protection Act (TCPA) and the Telemarketing Sales Rule (TSR)?

Importance
A mandated do-not-call list for each and every state, in addition to the federal company specific do-not-call list, places an unnecessary burden on the teleservices industry that will become increasingly costly and time consuming.

ATA Position
ATA believes the current federal do-not-call list requirement adequately protects consumers from unwanted telephone solicitations. The ATA opposes blanket state do-not-call lists while supporting the federal company-specific approach.

ATA opposes blanket state do-not-call lists on three fundamental grounds; (1) they unnecessarily duplicate existing federal law which already provides consumers the ability to have their names placed on a do-not-call list; (2) blanket lists deprive the consumer of choice. Under the federal company-specific program, individuals who may not wish to receive calls for one product are free to accept calls for products or services they might have an interest in; (3) the state lists do not deliver what they promise. The sponsors of such legislation typically portray their bills as a way for consumers to end all telemarketing calls. The multitude of exemptions they include, however, ensures that calls will continue. Lawmakers create, in essence, an elite group of favored organizations and businesses which have exclusive access to the consumer. States that have enacted such laws generally experience an initial sign-up rush, followed by a leveling off once consumers realize the ineffectiveness of such laws. Consumers do not renew at the same rate for this same reason. The end result is another government bureaucracy implementing another ineffective program at considerable cost to the taxpayer, another governmental burden on business, and increased costs for the consumer who is the real loser.

Background
In 1991, the Federal Communications Commission (FCC) implemented the Telephone Consumer Protection Act (TCPA). This law, together with the 1995 Telemarketing Sales Rule (TSR) promulgated by the Federal Trade Commission (FTC), formalized federal rules governing the operation of legitimate telemarketers. Neither law preempted states from establishing additional restrictions in this area. Companies conducting business by telephone may not call a consumer who has requested to receive no more calls from, or on behalf of, the seller whose goods or services are being offered. Sellers are required to maintain do-not-call lists of those consumers who do not wish to be contacted by phone, to develop a written policy, available upon request, of their do-not-call procedures, and to train telemarketing personnel in these procedures.

On the state level, the following states have enacted do-not-call provisions:

Alabama
Alaska
Arkansas
California
Colorado
Connecticut
Florida
Georgia
Idaho
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maine
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
New Mexico
New York
North Dakota
Oklahoma
Oregon
Pennsylvania
South Dakota
Tennessee
Texas
Vermont
Wisconsin
Wyoming

Of these, Connecticut, Maine, Pennsylvania, and Wyoming do not maintain a dedicated state do-not-call list but require telemarketers to subscribe to the Direct Marketing Association's Telephone Preference Service, a privately run national do-not-call list. The state laws now in effect differ widely in how they define exemptions; all of them, however, require compliance with a single list that teleservices providers would have to purchase from the state. The list of exemptions to do-not-call legislation can be broad or narrow. Virtually all, however, include three broad general categories: (1) calls falling under the heading of political speech, including fundraising, and other forms of "free speech" such as surveys or research that does not include a solicitation; (2) calls by non-profit or charitable organizations; (3) calls to consumers with which the company has an established business relationship.

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