Clarification of Answer by
cynthia-ga
on
17 Jan 2005 20:14 PST
There is some confusion in regards to whether State or Federal Law
supercedes. I'll provide all the conflicting information, most recent
first, and let you decide...
The most recent information is this:
Feb 2004 - Do-Not-Call Rules Enforcement Begins
http://www.phoneplusmag.com/articles/421feat04.html
Effect on state do-not-call lists. The federal rules and registry
constitute a floor and supercede any less restrictive state
do-not-call rules. Many states may have their own registries and rules
regarding intrastate telemarketing, however, any telephone numbers
within that state on the national registry also must be placed on the
state registry. Telemarketers placing intrastate telemarketing calls
must also be aware of these state registries and regulations to
prevent violating state-specific rules. The FCC?s rules do not specify
whether federal regulation will preempt state regulation of interstate
telemarketing calls.
Oct/Nov 2003 - This is written in regards to Realtors, but is still applicable:
http://www.ncmar.com/donotcallquestions.html
What if my state has a "do not call" rule that provides an exemption
for real estate licensees or other real estate activity exemption?
Does the FCC rule still apply to intrastate calls that are permitted
under my state's law?
Yes. The FCC action preempts state law that is less restrictive. A
state do not call law that provided an exemption for real estate
licensees would be considered less restrictive and therefore
preempted, prohibiting real estate professionals in that state from
making intrastate calls to persons on the Federal list,
notwithstanding the state exemption. It is also important that other
exemptions in the state law such as those for existing business
relationships be considered when determining compliance requirements.
Prior to that, here's information at the Newspaper Association of America web site:
Federal Trade Commission Revisions to the Telemarketing Sales Rule
Establishing a National "Do Not Call" List
Updated - February 4, 2003
http://www.naa.org/artpage.cfm?AID=4769&SID=1043
State Do Not Call Lists: The FTC rule does not preempt state "do not
call" lists. Although the FTC is attempting to harmonize the national
registry with state lists, the FTC has not fully explained how it will
handle state exemptions. Six states out of 27 have exempted newspapers
specifically from obligations to comply with state "do not call"
rules.
The FCC seems to be taking a more stringent stance:
States' "Do Not Call" Lists
http://www.sia.com/state_affairs/html/do-not-call.html
..."States are not required to discontinue the use of their own
do-not-call lists once the national do-not-call registry goes into
effect. The federal rules constitute a "floor" and therefore, states
may adopt more restrictive do-not-call laws governing intrastate
telemarketing.
Comment: The commission did not preempt state-administered do-not-call
lists but will coordinate with the states to harmonize their lists
with the national registry. Nothing done in the FCC's rule prohibits
states from enforcing state regulations that are consistent with the
federal law in state court. SIA believes the FCC rules preserve the
authority of the states to address violations of their do-not-call
list but (1) the state lists must be part of the national list and (2)
violations would include calling a person on the national list even
though the state had its own exception for such a call......The states
could not be more restrictive than the federal commission in terms of
do-not-call provisions. So, for example, a state could not prohibit
calls from a nonprofit if such calls are permitted under federal law.
Similarly, states could not provide exemptions to permit certain
businesses (e.g., securities) to make calls if such exemptions are not
included in the federal rules..."
You will want to keep an eye on this page at the National Association
of Attorneys Genneral (CA is a participant):
Multistate Actions: Don?t preempt state No Call efforts, Attorneys
General tell FTC regarding national No Call registry proposal
http://www.naag.org/issues/20020412-multi-no_call.php
Here's a discussion relevant to your query:
FEDERAL TRADE COMMISSION - RULEMAKING WORKSHOP - WEDNESDAY, JUNE 5, 2002
STARTS ON LINE 13 OF PAGE 19:
13 Well, let's get right to the issue of interplay
14 between the proposed FTC national do-not-call list and
15 state lists and laws, and the opening question is, how
16 should the state programs, lists and laws interface
17 with an FTC rule and national registry should it be
18 adopted? What should the interface be?
DOING BUSINESS? The Law & You
Prospecting Alert - Careless cold calling could be costly.
..." In 2001 alone, eight states?Colorado, California, Indiana,
Louisiana, Texas, Virginia, Wisconsin and Wyoming?passed do-not-call
laws, and all the remaining states have legislation
pending......Generally, the ensuing state laws establish do-not-call
lists on which consumers may register. State laws often further
protect consumers by expanding call curfews, as is the case in
Kentucky, where the call curfew is 6 p.m. to 10 a.m. State violations
can result in fines ranging from $2,000 (New York) to $25,000
(Oregon).
States often exempt certain types of callers, including charities,
non-profits, and political groups from their do-not-call law.
A few states?Alaska, Arkansas, and Indiana?have specifically exempted
real estate salespeople (sometimes referred to as "state licensees").
And other state exemptions may apply to the real estate industry. The
most common state exemption permits calls to consumers if a prior
business relationship existed within a certain time period, up to as
long as three years ago in some cases.
However, even if real estate salespeople are exempt from the law in
your state, take heed. Consumers registered on do-not-call lists
aren't likely to be aware of these exemptions and may believe that
your call violates the law. Making calls to these already irritated
consumers could hurt your business..."
Additionally, there are 5 tips near the bottom of that link:
..."How to protect yourself - Here are precautions you can take to avoid fines:
1. Know the laws. It's your responsibility to be aware of applicable
state and federal laws, including specifics such as call curfews,
dinner hour restrictions, and Sunday and holiday curfews. ..." [more
at the link above]
=========================================================================
In a perfect world... the State Law preempts the Federal Law. Since
state law was enacted to provide for these exemptions, by a majority
of the citizens, a complainant would have to challenge the State LAW,
not you, or your company -personally. Complaints would be made to the
FTC or the State of California. If a consumer was unhappy with the 5
employee/50 mile radius exemption they would be refered to the
California Attorney General's Office.
If I were you, I would craft a carefully worded letter to the
California Attorney General and get a written determination. I think
it would be in your favor, but considering the confusion, I could be
wrong.
~~Cynthia
Additional search terms used at Google:
"do not call" state exemptions preempt
