The Federal Communications Commission refused on February 10, 2005, to exempt specific industries from the national no-call list but issued a clarification to the existing-customer exception.
“We are not reconsidering rules establishing the do-not-call registry,” said K. Dane Snowden, chief of the FCC’s consumer and governmental affairs bureau, at an FCC hearing. “Our task is to ensure the proper balance between personal privacy and legitimate business interests.”
Several industry groups had asked to be excused from national telemarketing rules passed in 2003. For example, 53 state and regional newspaper associations have argued that the no-call list restricts them in distributing their products, which are protected as free speech under the First Amendment. In another instance, DialAmerica Marketing asked that the FCC exempt its 27-year-old charity magazine subscription program in which it sold magazines on behalf of charities and gave them 12.5 percent of the proceeds. Though the FCC did not specifically deny any exemption request, it made clear that no DNC exemptions other than those already existing would be granted.
But in a ruling that should prove helpful to companies in industries such as banking, lending, and insurance, the FCC clarified that contracts with consumers signify an existing business relationship, allowing companies to call contracted consumers under the existing customer exemption.
The agency has yet to rule on whether the federal law preempts state telemarketing laws. Petitions are before the FCC to override laws in Florida, Indiana, New Jersey, and Wisconsin. Snowden said the Commission will consider the preemption question in the coming months.
Other issues ruled on by the FCC:
Companies must abide by company-specific do-not-call requests from consumers for five years from the date of the request.
Debt collectors are not required to give their state-registered name in prerecorded messages if doing so would conflict with federal or state law.
Telecommunications carriers, which are required to notify customers of their right to register for the no-call list, may satisfy this requirement by including notices in customer bills.
Radio and television broadcasters may send prerecorded messages to consumers to advertise programming so long as that programming is offered free. Prerecorded telemarketing calls are otherwise banned except to existing customers.
In a separate move the agency announced the release of a list of wireless domain names to prohibit commercial e-mailers from sending text-message and e-mail solicitations to wireless addresses. Commercial e-mailers will have 30 days to cease e-mailing the domain names and must download updates from the list at least once a month, the FCC said. The list is available at www.fcc.gov/cgb/policy by clicking on “Download Registered Domain Names.” Transactional and relationship messages, such as notifications and account status, may be sent to wireless domains. However, if any part of the message is deemed commercial, the entire message is banned.
Significance: The FCC’s refusal to exempt certain industries from the strictures of the Do Not Call registry is a defeat for marketers in those industries. However, its clarification of the existing-customers exemption as well as other rulings on telemarketing practices should prove helpful to telemarketers looking for guidance on what is and is not permitted.