Do Not Call Registry is "Fully Up and Running": Updates on Court Challenges and Enforcement Actions

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Posted: Sep 24 2003

National Registry is Underway

Court challenges to the National Do Not Call Registry were thrown out about by the 10th Circuit District Court, upholding the ability for consumers to sign up for the Registry. While being challenged, the Federal Trade Commission (FTC) was given permission to begin enforcing the registry by the Tenth Circuit Court of appeals on October 7, 2003. Telemarketers can begin accessing the Registry on October 10th and have seven days to scrub their calling lists of those numbers.

According to the FTC, consumers who signed up for the Registry on or before August 31, 2003 can file complaints about telemarketers who violate the Registry beginning Saturday October 11th. To file a complaint, see our fact sheet 5, Telemarketing: How to Have a Quiet Evening at Home:
www.privacyrights.org/fs/fs5-tmkt.htm#part6

Keep in mind that there are exemptions to the Registry and consumers may still receive calls. For clarification on those exemptions, see our fact sheet 5:
www.privacyrights.org/fs/fs5-tmkt.htm#part2

The ability to sign up for the Registry is again in place, and telemarketers can get access to the Registry beginning October 10. Those who signed up for the Registry on September 1 or later, will have to wait three months before their number is incorporated with the Registry and telemarketers' do no call lists.

Overview of Court Challenges

With just days to go before the Federal Trade Commission's (FTC's) Do Not Call Registry was to be launched on October 1, 2003, two U.S. District Courts ruled to prevent it from operating. The Oklahoma Western District Court ruled that the FTC did not have jurisdiction to offer the Do Not Call service. That case was brought by the Direct Marketing Association, the major industry association for marketers. The day after the Oklahoma Court's September 24 decision, Congress acted swiftly to enact legislation to rectify the jurisdictional matter. Problem resolved, or so we thought.

On September 25th, the Colorado District Court ruled that the Do Not Call Registry violates the First Amendment speech rights of telemarketers. This suit was brought by the American Teleservices Association and two Colorado marketers. On October 7, the 10th Circuit Court of Appeals stated that the FTC could implement the Do Not Call Registry.

The court found that since the government is giving consumers a choice to limit only certain kinds of phone calls (ie: commercial calls from companies and not nonprofits or politicians), the government is effectively choosing between types of speech. The appeals court hearing is expected to be heard in November 2003.

Daily Updates

The following are updates on the National Registry as they unfolded.

UPDATED September 29, 2003:
On September 26th, the 10th Circuit court of appeals noted that the Federal Communications Commission (FCC) could still enforce the National Do Not Call Registry. www.ck10.uscourts.gov/circuit/03-9571.pdf

However, only telemarketers who actually accessed the Registry to scrub their lists of the numbers of those who had subscribed would be affected.
To read the FCC's statement about this ruling, go to:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239219A1.doc

The Direct Marketing Association (DMA) reiterates that the FCC can enforce the National Registry beginning October 1. Those marketers who did not access the FTC's Registry before it was closed off, should not risk violating the Telephone Consumer Protection Act (TCPA).
For more information, www.the-dma.org/cgi/dispnewsstand?article=1510

We predict that the backlash to telemarketing calls after October 1, whether exempted from the National Registry or not, will be substantial.

UPDATED September 30, 2003:
Wrangling over the implementation of the National Do Not Call Registry continues today with District Court Judge Nottingham stating that the Federal Trade Commission (FTC) should not side-step his previous stay of the National Registry by allowing the Federal Communications Commission (FCC) to enforce it beginning tomorrow.
www.co.uscourts.gov/opinions/ewn_03N184MJW.pdf

Though the FTC has filed a motion to appeal the stay, the agency is no longer giving telemarketers access to the Registry so that they can scrub their calling lists, is not allowing consumers to register complaints about telemarketers who violate the Registry, and is dismantling the ability for consumers to sign up for the Registry, though registration is still enacted at the time of this writing. www.ftc.gov/opa/2003/09/dncstay.htm

In theory, the FCC can still take complaints from consumers regarding telemarketing calls, but it is only enforcing violations of the Registry for those telemarketers who actually had access to it before this was shut down by the FTC. It is unclear what will happen to telemarketers who did not get access to the Registry beforehand. For more information, see:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239380A1.doc
The FCC has also issued a Consumer Do Not Call Advisory with more advice for consumers regarding how to address telemarketing calls and file a complaint with the FCC after October 1 at:  www.fcc.gov/cgb/consumerfacts/donotcalladvisory.pdf

The Direct Marketing Associations comments about this newest wrinkle can be found at:
www.the-dma.org/cgi/dispnewsstand?article=1515

California Attorney General Bill Lockyear and Colorado Attorney General Ken Salazar say they will challenge the recent Colorado District ruling and lead a fight on behalf of 45 states to protect their statewide Do Not Call lists from this most recent legal challenge.
www.ag.ca.gov/newsalerts/2003/03-119.htm

UPDATED October 1, 2003:
Consumers nationwide are in essence, in telemarketing limbo today. The question is whether telemarketers will contact consumers who had signed up for the National Do Not Call Registry,  whether they have gotten access to the list or not. The Direct Marketing Association (DMA) as noted below, has urged " telemarketers and their service providers to respect those consumers who have registered their phone numbers on the FTC's list." Yet, the FTC notes, "at least 12,000 firms had inquired about getting the list at one time, only 5,600 have gotten some parts of it. At least 400 have downloaded all of the 50 million phone numbers," a small number of the telemarketing industry. The legal wrangling over the First Amendment issues (see the Colorado District Court Ruling below) surrounding the Registry may not be resolved until early next year.

The Federal Communications Commission (FCC) has stated that it will continue to enforce the Registry for those telemarketers who had complete access to it. The question is, whether those who did not get complete access will continue to contact consumers. Because the FTC shut down access to the registry by telemarketers and has not shard the numbers of those who signed up with the FCC, the FCC has asked the Direct Marketing Association to share the list with them and the names of those telemarketers who got full access to the Registry.
www.fcc.gov/commissioners/powell/dma_letter_100103.pdf

We would like to get feedback from consumers who have subscribed to the Registry and continue to receive calls from telemarketers who are not exempt from calling them (for exemptions, see our Fact Sheet 5, Telemarketing: How to Have a Quiet Evening at Home at www.privacyrights.org/fs/fs5-tmkt.htm). You can notify us by using our online inquiry form at:
www.privacyrights.org/qwertyuiopasdfghjkl.php.

UPDATED October 2, 2003:
The Federal Communications Commission (FCC) set up a special Do Not Call Enforcement Team in light of the complaints that it has been receiving from consumers
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239488A1.doc

The number and types of complaints that the FCC has been receiving, are noted in the following release:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239514A1.doc

The Direct Marketing Association (DMA) has provided guidelines for both telemarketers who do have access to the list and who don't about how to continue conducting their business:
www.the-dma.org/cgi/dispnewsstand?article=1548

The DMA also responded to FCC Chairman Powell's request for information (see Oct. 1 above) stating that it would "work to the fullest extent of the law to cooperate with the FCC."
As such, The DMA stated that it would voluntarily provide a list of telemarketers that accessed the list to the FCC, but was unwilling to provide the agency with a copy of the Registry since it is sharing the list would violate their certification to the FTC that they would not distribute the list. www.the-dma.org/cgi/dispnewsstand?article=1529

UPDATED October 7, 2003:
The 10th Circuit Court of Appeals granted the Federal Trade Commission's (FTC's) request to allow it to enforce the National Do Not Call Registry while the Colorado Court decision is appealed. The FTC will reopen telemarketer access to the National Do Not Call Registry site on October 10. Once the site reopens, telemarketers that have not yet accessed the database and downloaded relevant area code information will have seven calendar days to do so and to come into compliance with the Do Not Call provisions of the FTC's Telemarketing Sales Rule. The Federal Trade Commission is providing this grace period because, when the legal uncertainty began, telemarketers had seven days remaining to access the Registry and download needed data before the October 1 effective date. In other words, the Registry will be in full effect on October 17.

To read the decision, go to:
www.ck10.uscourts.gov/circuit/031429.pdf

To read the FTC's response and information about the time line for the Registry, see:
www.ftc.gov/opa/2003/10/dncgrant.htm
www.ftc.gov/bcp/conline/edcams/donotcall/businfo.html

And the response of the FCC can be found at:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239676A1.doc

The DMA notes that telemarketers should be able to access the Registry through the FTC "soon."
www.the-dma.org/cgi/dispnewsstand?article=1553

UPDATED October 8, 2003:
The Federal Communications Commission (FCC) notes that it has received 2,379 complaints about violations of the Registry.

To read the full release:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239608A1.pdf

UPDATED October 9, 2003:
The latest news from the FTC is that consumers can again sign up for the Registry beginning today, telemarketers can get access to the Registry beginning tomorrow, and those who subscribed to the Registry prior to August 31, 2003 can file a complaint with the FTC for Do Not Call violations beginning Saturday the 11th. Those who signed up for the Registry on September 1 or later, will have to wait three months before their number is incorporated on the Registry and telemarketers are no longer allowed to call.

Keep in mind that there are exemptions to the Registry and consumers may still receive calls. For clarification on those exemptions, see our fact sheet 5, Telemarketing: How to Have a Quiet Evening at Home:
www.privacyrights.org/fs/fs5-tmkt.htm#part2

Updated October 16, 2003:
The FTC noted that it has received 15,000 complaints from consumers alleging violations of the Do Not Call Registry. The agency also stated that the number of phone numbers on the Registry has climbed to 53.7 million. As of October 15, 2003, nearly 21,000 organizations had accessed the Registry with 550 telemarketers downloading all area codes in the Registry.

To read the full release:
www.ftc.gov/opa/2003/10/dnccomplaints.htm

Updated November 3, 2003:
According to a Reuter's article, Mainstream Marketing Services Inc. noted in a court filing today that the Federal Trade Commission has not shown there is a real need for a "do-not-call" registry that allows consumers to stop telephone solicitations. The group also said the registry is unfair because telemarketers must pay for access to the registry. A substantial portion of the money raised will be used for general Federal Trade Commission agency functions and a technical system to address "fraud-related complaints."

According to the article, "Mainstream Marketing said that while the government does have an interest in residential privacy it cannot prove this by 'merely naming an activity that may impinge upon privacy.' "

The Federal Communications Commission (FCC) issued a press release today proposing to fine AT&T Corporation $780,000 for apparent violations of Do Not Call rules, the first fine proposed for Registry violations. The Commission found that "AT&T apparently made telephone solicitation calls to 29 consumers on 78 separate occasions after those consumers had requested that AT&T not call them again."

Ironically, AT&T is the contractor that maintains the National Do Not Call Registry.

Need for 'do-not-call' list unproven-telemarketers
www.reuters.com/newsArticle.jhtml?type=topNews&storyID=3747093

FCC's press release regarding AT&T's alleged registry violations
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-240617A1.doc

Updated November 7, 2003:
California Attorney General Bill Lockyer's office filed suit against a California-based telemarketer who has been calling state residents who are on the Do Not Call Registry.
The complaint alleges the company, American Home Craft, Inc., a home improvement company, contacted dozens of Calfornians on the Registry.

The lawsuit is believed to be the first filed in the country against a company for phoning numbers on the National Registry.

To read the release from the AG's office, see:
www.ag.ca.gov/newsalerts/2003/03-137.htm Updated December 8, 2003:
A U.S. District court and the FTC have filed a permanent injunction and taken action against Free Do Not Call List.org (FDNCL.org) and National Do Not Call List.us (NDNCL.us) for registering consumers on the National Do Not Call list for a fee. The FTC reiterated that third parties are not allowed to register others for the list. David Chase, the owner of the businesses, "allegedly represented that consumers who subscribed to the service could stop receiving telemarketing calls, as well as unsolicited faxes and junk mail. The cost for the service was between $9.99 and $17.99 per year." He now must refund a total of nearly $3,800 to the 254 consumers who registered with his Web sites.

For more information about the Court ruling and FTC action, see:
http://www.ftc.gov/opa/2003/12/chasednc.shtm The Privacy Rights Clearinghouse is interested in hearing from CA consumers who are on the Do Not Call Registry that are receiving pre-recorded messages from a company called Mortgage Concepts. The company's contractor for the outbound sales calls, LMA Marketing, claims it is exempt from complying with the Registry because they are conducting a survey. For more information, read the PRC's alert:
www.privacyrights.org/ar/mortgageconcepts.htm

Updated December 19, 2003:
On December 18, the Federal Communications Commission (FCC) issued its first citation against a telemarketer who allegedly has been violating the Do Not Call Registry and phoning consumers who are on the list. The citation was brought against California Pacific Mortgage for failure to honor the FCC's National Do Not Call rules.

According to the statement issued by FCC Enforcement Bureau Chief David H. Solomon, "California Pacific Mortgage may be subject to a monetary forfeiture if it continues to violate the Do Not Call rules. The Communications Act, however, requires that the FCC issue a citation as a first step when dealing with a company that does not hold an FCC license or other authorization. To read the full statement, go to:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-242324A1.doc

Updated January 5, 2004:
On January 5, the FCC fined notorious junk faxer Fax.com  over $5 million. As the release below notes, "This is the largest single fine ever imposed by the Commission for violation of the TCPA." Citing 489 separate violations, the FCC said Fax.com's "primary business activity itself constitutes a massive on-going violation."

For a copy of the FCC's release:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-242654A1.doc

Updated January 12, 2004:
The California Attorney General's office filed suit against telemarketer L.M.A. Marketing, (aka Mortgage Concepts). The case notes the company contacted those on the Federal Do Not Call Registry and did not note the company's name or phone number in the pre-recorded "surveys" they were conducting to pitch a mortgage product. The case could help clarify what is considered a "survey" under telemarketing law.

PRC's Alert about Mortgage Concepts:
www.privacyrights.org/ar/mortgageconcepts.htm

Complaint filed in US District Court:
www.ag.ca.gov/newsalerts/2004/04-003.pdf
Release put out by the AG's office:
www.ag.ca.gov/newsalerts/2004/04-003.htm Updated February 13, 2004:
A Harris Poll released today notes that the FTC's Do Not Call Registry has been successful at reducing commercial sales calls to consumers. The survey notes that "more than half of all adults (57%) say they have signed up and most of these people say they have either received no telemarketing calls since then (25%) or far less than before (53%)." The survey continues, "The proportion of all adults who have heard of the Registry has increased from 71% last September to 91%" and that "the proportion of all adults who claim to have signed up with the Registry has increased from 32% last September to 57%."

The news release from Harris about the survey is available at:
www.harrisinteractive.com/harris_poll/index.asp?PID=439

Updated February 17, 2004:
Consumers can rest easy now that the 10th Circuit Court of Appeals upheld the Do Not Call Registry in a decision issued today. The decision notes, "We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government's reasons for enacting them."

The decision can be read in its entirety at:
www.ck10.uscourts.gov/opinions/03-1429.pdf

Updated February 18, 2004:
The FCC announced today that it has received nearly 10,000 complaints since the Do Not Call Registry came into effect October 1, 2003. The FCC has also issued eight citations for Do Not Call Registry violations.

To read the full release from the FCC, go to:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-244022A1.doc