POWELL SEEKS TELEMARKETERS’ AID IN ENFORCING DO-NOT-CALL

The DMA issued a statement saying it was “working with its members” to comply with Powell’s request. It said it already had begun asking its members to comply by letting it know whether they had obtained access to the list before the registry was closed over the weekend. “The DMA is attempting to comply to the fullest extent possible with today’s FCC request,” DMA Pres. Robert Wientzen said. It wasn’t clear whether the American Teleservices Assn., whose legal challenge led to recent court action against the DNC list, would agree to Powell’s request.

A federal court has blocked the FTC from enforcing the list or giving a copy to the FCC. However, Powell said the FCC believed it can use the database to enforce the new program if it was provided by the DMA instead of by the FTC. “We have tools up to and including subpoena power to get the evidentiary information we need to prosecute,” Powell said. This is going to be a “messy process” but the FCC has people capable of handling the large task, he said. He said the Commission had been able to handle large call volumes in the past, for example after the 911 terrorist attacks. Although there has been some question whether the FCC can enforce something a court barred the FTC from enforcing, Powell said he believed the agency had the jurisdiction. The DNC list has become one of the FCC’s top enforcement priorities, he said.

“I believe that by working together now, we can find a way during this time of legal uncertainty to achieve our common goal of ensuring respect for the wishes of American consumers,” Powell said in the letter to the DMA. “One way to achieve these certainties for both consumers and your industry is to create a clear framework within which telemarketers must operate and within which the FCC will carry out its responsibilities to enforce the law.”

Meanwhile, the Office of Management & Budget (OMB) said it had approved for 3 years the information collection associated with the telemarketing rules adopted by the FCC, and said it was continuing its review of the information collection associated with the fax advertising rules. “Our [telemarketing] rules are now affective, and we can proceed accordingly,” said June Taylor, FCC’s Consumer & Governmental Affairs Bureau chief of staff. She said the OMB approval covered all FCC telemarketing rules, including restrictions on call abandonment, time of calling and others, but she clarified that it had “no impact on what is happening in the courts.”

Cal. and Colo. Attorneys Gen. (AG) filed an amicus brief on behalf of the AGs of 45 states, D.C. and Puerto Rico, urging the 10th U.S. Court of Appeals, Denver,, to stay a lower court’s ruling blocking the national DNC program. The lower court denied the FTC’s request for a stay, prompting the Commission to file a motion with the 10th Circuit Tues. (CD Oct 1 p2) seeking an emergency stay pending appeal of the last week’s order.

“Consumer protection is a responsibility states have historically shouldered and the right of privacy in California is a fundamental, inalienable right,” Cal. AG Bill Lockyer said. He said more than 6.1 million Cal. consumers had put their numbers on the list, and “these Californians expect to be protected against the invasion of telemarketers selling products and services they don’t want and didn’t ask for.” Lockyer urged the appellate court to “move swiftly to allow this important consumer protection law to go forward.”

Preventing the FTC from enforcing its DNC program would have a significant impact on the compelling public interest in protecting the privacy of consumers, the AGs argued. Colo. AG Ken Salazar said: “This is a matter of residential privacy, not commercial telemarketers’ alleged free speech rights.”

The AGs also expressed concerns that denial of the stay could hamper the ability of some states to enforce their own DNC laws and regulations. “Delay in the implementation of the federal do-not-call law would pose a burden on residents in states that have enacted similar protections that rely on the federal registry under state law,” they said. For example, they said Cal., which had intended to adopt its state-operated DNC statute in Jan. 2003, opted to revise its plan and enforce state and federal laws against businesses that continued to call numbers on the FTC’s list after the FTC announced it would establish and maintain a national list. “Having one list saved the state and consumers more than $2 million, eliminated confusion for consumers faced with 2 separate lists and cut costs for businesses that would have had to purchase both a state and federal list,” the AGs said. If the dist. court’s decision isn’t stayed, “California may have to return to its original plan after already suffering a year-long delay in providing relief to… consumers,” they said. Salazar said Colo. joined in the effort “because of the constitutional issues that have been raised, which may ultimately impact Colorado’s state law,” although he said the state’s law wasn’t directly affected by the federal court rulings because Colo. had its own state registry independent of the federal one.

Meanwhile, an FTC spokeswoman said Wed. that agency was “temporarily out of the do-not-call business” until the 10th Circuit made its decision, adding that she didn’t know how long it would take.