ONE SET OF RULES, NOT 50, BEST SUITED FOR TELEMARKETERS

July 22, 2005

I'll make this admission right up front: I was a telemarketer.

For several years while I was a college student during the early 1980s I worked for long-distance provider MCI selling its services along with hundreds of others at a location north of New York City where we scratched out an existence at about $6 an hour. But for many the job provided needed money for tuition and books and, for some who were not in their late teens or early 20s, crucial second incomes.

Fast forward about two decades and we see a recent headline on msnbc.com: "Do Not Call List Under Attack, Activists Say. Battle Brewing As Telemarketers Ask FCC to Nullify Tough State Laws."

As if almost 100 million Americans on the federal Do Not Call list wasn't enough, the story with the "Attack" headline mentions "those pesky telemarketing calls" without discussing the jobs the industry provides. But it does cover the petition asking the feds to exercise "exclusive jurisdiction over interstate telemarketing calls." It goes on to describe the laws various states have on the books that further restrict the industry.

Also mentioned is that telemarketing groups are attempting to "open the door to a floodgate of new calls," so says the Electronic Privacy Information Center.

And what is the industry looking to get from Washington?: Just one set of rules without the nightmare of complying with the whims of 50 state governments.

Indiana Attorney General Steve Carter is quoted as saying there will be "an avalanche" of calls if the FCC backs the telemarketers.

According to the story, Indiana, along with Florida, New Jersey, Wisconsin and North Dakota, have stricter laws than the federal Do Not Call rules. In the Hoosier State, calls may not be placed to those on the state's list. But under the federal law, consumers on the DNC list, which, according to the story, is administered by both the FCC and FTC, may be contacted if they have an existing business relationship with a company.

EPIC's Chris Hoofnagle predicts "the phone is going to start ringing off the hook."

He cites as a "big loophole" the EBR exception, claiming that it would lead to "millions" of solicitation calls.

"Every month, people shop at dozens of places. Buying a cup of coffee can create a 'relationship' that would allow the coffee shop to call you, even if you are on the Do Not Call Registry," he was quoted as saying. "I really see this as an opportunity for there to be a lot more telemarketing."

Does this mean that all those who are addicted to their daily double latte at Starbucks will be disturbed with calls after arriving home from a stressful day at the office?

I think not.

Also covered was that federal law permits automated calls by computers while Florida outlaws the practice. Calling in Louisiana is not allowed on either Huey P. Long Day or Acadian Day.

The FCC is looking for comments on the states-vs.-federal government matter. The deadline is July 29. The commission may issue a ruling at a time of its choosing.

One person not buying EPIC's argument is FTC spokesperson Jen Schwartzman, who was quoted as saying "the federal list is working well."

She shot down the argument regarding the EBR exemption by stating that those called by firms they have done business with may ask to be removed from a company's list.

"There is that extra layer of protection," she was quoted as saying. "You can always request to be taken off their call list and they have to comply. Having an [EBR] is not a life sentence to get telemarketing calls."

Under the Do Not Call Rule, a company may call consumers whose numbers are on the national registry if the firm has an EBR with the consumer, unless the consumer has asked not to be called. Companies with whom a consumer has an EBR may call for up to 18 months after the last business transaction with the company. Also, since 1995, the FTC's Telemarketing Sales Rule has required companies to maintain a company-specific do not call list and to honor consumers' specific requests that they not be called. Such requests must be honored, even if the company has an EBR with the consumer. Companies are not allowed to call former customers whose numbers appear on the national registry after the 18-month period has expired.

The FTC has reminded businesses that, before calling a former customer based on an EBR, they must be sure that the relationship has not expired and that the customer has not made a specific request not to be called. Firms hiring third parties to conduct telemarketing on their behalf are responsible for making sure that telemarketers obey federal law by: downloading the pertinent area codes from the no-call registry; scrubbing their call lists every month; ensuring that EBRs are current prior to contacting consumers whose numbers are registered; and honoring company-specific do not call requests.

By Glenn J. Kalinoski, Executive Editor, Customer Inter@ction Solutions