The Federal Trade Commission is about seven months away from launching its controversial national Do Not Call list. Maybe. The list may be delayed by two separate lawsuits filed on Jan. 29 by the Direct Marketing Association and American Teleservices Association, arguing that a government-run list would infringe on First Amendment free-speech rights.
The suits could be rendered moot if Congress passes legislation and funding for the registry. A House vote was postponed until Feb. 12; at presstime, the Senate was in the process of reconciling an omnibus bill that included $16 million to start the registry. Congress is expected to pass both bills by early March to secure funding for fiscal 2003.
The Do-Not-Call Implementation Act [H.R. 395] will let the FTC collect fees from marketers to set up and run the list through fiscal 2007. The Senate omnibus bill [H.J.Res. 2] gives the FTC initial funding, but if it’s not approved in the current budget, the list will be postponed at least a year. Once the laws pass, the FTC has seven months to launch its list; the Federal Communications Commission has 180 days to finalize its plans to revise the Telephone Consumer Protection Act to jibe with the FTC.
The DMA’s suit argues that the FCC’s recommendations — expected as early as this month — could include yet another national Do Not Call list. But the FTC and FCC have agreed to cooperate, and the FCC is likely to link its rules and enforcement to the FTC’s registry database, rather than set up its own list.
The FTC will begin seeking a contract to launch the do not call list “within days” of the law passing, says Allen Hile, assistant director of the FTC’s Division of Marketing Practices. “It’s moving as well and as fast as can be expected.”
Ironically, it looked in December like bill-sponsor Rep. W.J. “Billy” Tauzin (R., LA) — chair of the House Energy & Commerce Committee — might stall the FTC, too. He wrote a letter to FTC Director Timothy Muris saying the committee needed “adequate opportunity to properly review and evaluate” the plan or he’d block funding. A quick hearing answered committee questions about how the FTC would coordinate with the FCC and 20 states that already have Do Not Call lists, and the committee moved hastily to recommend the bill, which requires the FTC and FCC to report to Congress annually on the effectiveness of a national registry; number of consumer registrants; amount of fees paid to access the list; progress of coordinating with states’ lists and with the FCC; and status of enforcement.
Once passed, the legislation will take the wind out of the DMA and ATA’s sails, says Hile: “It will put into question their complaints that the FTC doesn’t have the authority to run a registry.”
Still, the DMA argues that a national registry “would set up the [FTC] and the industry for a black eye because it cannot deliver on the consumer expectations that the FTC has created,” says DMA President-CEO Robert Wientzen in a statement before the DMA filed suit. The DMA continues to push its own Telephone Preference Service as an adequate resource for consumers to opt out of telemarketing and for marketers to scrub their lists.
Many consumers are eager for the FTC-run registry. Millions have already joined lists in 20 states, and the DMA has registered 7.5 million consumers for its 18-year-old registry.
Still, some industry experts think it’s a bad precedent. Law firm Hall Dickler Kent Goldstein & Wood, New York City, warns “Anyone who believes that this initiative is only about telemarketing is missing the point. It may be the forerunner of initiatives directed at any form of marketing deemed intrusive by consumers.”
Meanwhile, Colorado is mulling a Do Not E-mail list that would require e-mail marketers to scrub their lists quarterly and pay up to $500 per year to access the list of consumer e-mail addresses. Missouri is considering a similar law.
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