October 8, 2003

America’s on-again, off-again relationship with the national do-not-call registry is on again.

When the registry opened earlier this year more than 50 million exasperated consumers, fed up with dinner-time phone calls from telemarketers, signed up and put their telephone numbers off limits to telephone salespeople.

The registry was almost immediately put on hold by the courts on the grounds that the Federal Trade Commission (FTC) lacked the authority to implement the registry. Upon a congressional bestowal of that authority, a second court ruled that the registry violated the constitutional rights of telemarketers.

Late Tuesday afternoon a three-judge panel of 10th Circuit Court of Appeals ruled that the FTC could implement the registry pending the court’s consideration of the free-speech rights of telemarketers.

Every business that makes cold solicitations over the telephone needs to be aware of this registry. It only applies to residential accounts so business-to-business solicitation calls are still allowed. Businesses that are operated out of homes, however, may entrap unsuspecting salespeople. The rules do allow a business to call customers with whom it has an existing business relationship, which is defined as extending 18 months from any purchase or transaction or three months from any inquiry or application.

If a business does want to market to customers over the phone, it may sign up to access the do-not-call registry for an annual fee of $25 for every area code searched, with a maximum fee of $7,375. Telemarketers and sellers must access the registry at least every three months to scrub their solicitation lists of barred phone numbers.

While the registry will be maintained by the FTC, enforcement responsibility will be shared with the Federal Communications Commission. The FCC’s maximum penalty for a violation will be about $12,000; at the FTC, the same action will cost the miscreant a maximum of $11,000.

The FTC expects its nationwide registry to eventually supplant lists that are currently maintained by about 36 states, although bringing all of the different rules and list formats into conformity could take several years. Senate President Jim King (R-Jacksonville) has asked the Senate staff to investigate the issues involved in bringing Florida’s do-not-call rules into harmony with those issued by the federal government. Senator King has also instructed his staff to gather information about the desirability of allowing commercial telephone customers to sign up for a do-not-call list.