Regulatory History of the "No-Call" Registry

The Federal Trade Commission
In 1994, Congress enacted the Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAPA), 15 U.S.C. Secs. 6101-6108. The law directed the Federal Trade Commission to create rules that prohibit deceptive and other abusive telemarketing acts or practices, Id . Sec. 6102(a)(1). Among other things, the law also required the FTC to create rules preventing telemarketers from engaging in patterns of unsolicited calls that the reasonable consumer would consider coercive or abusive to the right to privacy. Id . Sec. 6102(a)(3)(A).

The TCFAPA placed regulation of certain entities outside the FTC's jurisdiction, such as financial institutions, common carriers, air carriers, nonprofit organizations, or insurance companies regulated by state law. 15 U.S.C. Secs. 41-45; 15 U.S.C. 6105(a). If the FCC were not also adopting and enforcing the national Do Not Call Registry (DNCR), large gaps in regulatory coverage would exist. Hence, the FCC, with its broader jurisdiction, also adopted and is enforcing the national DNCR.

In 1995, the FTC promulgated rules defining abusive telemarketing practices to include initiating outbound calls to people that manifested a wish not to receive such calls. 16 C.F.R. Sec. 310.4(b)(1)(iii).

In 2002, the FTC issued a public notice suggesting it would create and maintain a national DNCR.67 Fed. Reg. 4516-4521.

In January 2003, the FTC finalized a set of rules creating the nationwide DNCR. This set of rules empowers consumers to stop calls from companies that fall within the FTC's limited jurisdiction. It does so by prohibiting telemarketers from engaging in abusive telemarketing practices and defines abusive practices to include calling a person who placed her number on the national DNCR.16 C.F.R. Sec. 310.4(b).

The FTC limited this rule's restrictions by allowing, for example, telemarketers to a call a person for several months after a business relationship is started. Id . Sec. 10.4(b)(1)(iii)(B)(i)-(ii). The FTC also exempted charitable organizations from the rule. Id . Sec. 310.6(a). This set of rules is the subject of the current national DNCR litigation. The rules were slated to become effective on October 1, 2003, but were delayed until October 17, due to the litigation.

The Federal Communications Commission (see FCC web page on DNCR)

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA), granting the FCC the authority to promulgate rules protecting the privacy rights of people with telephones who wanted to avoid unwanted telemarketing calls. 47 U.S.C. Secs. 227(c)(1)(A)-(E), (c)(3). The law expressly permitted the Federal Communcations Commission to establish and operate a single national database of people who objected to receiving telephone solicitations. Id . Sec. 227(b)(1).

In 1992, the FCC adopted rules under the TCPA [pdf], but declined to create a national "do-not-call" list. At the time, the FCC determined that such a list would not assist telephone subscribers who mostly wanted to maintain their ability to choose among those telemarketers from whom they did and did not want to hear. So, at that time, the FCC required company-specific do-not-call lists (maintained individually by companies).

In 2002, the FCC found that company-specific registries were not alleviating the deluge of commercial telemarketing calls. The FCC notified the public that it would create a national do-not-call list.

On June 26, 2003, the FCC finalized its national DNCR (see the rules [pdf] or view comments on the rules from the Privacy Rights Clearinghouse). The practical impact of the FCC creating its own national DNCR is that because the FCC has broader jurisdiction than the FTC, the DNCR applies to more categories of telemarketers. The FCC and FTC will coordinate their enforcement efforts of the list.

The Oklahoma case: Did the FTC have jurisdiction to act?

The first federal court decision striking down the DNCR did so on statutory grounds. In an order [pdf] issued on September 23, 2003, Oklahoma District Court Judge West ruled the FTC was the wrong federal agency to compile the registry. West wrote that Congress had authorized the Federal Communications Commission (FCC) to create such a registry.

True, the Telephone Consumer Protection Act of 1991 gave the power to the FCC, but it arguably gave concurrent power to the FTC. In 1994, Congress enacted another statute, the Telemarketing and Consumer Fraud and Abuse Prevention Act, which says the FTC can prohibit "deceptive or abusive telemarketing practices." The FTC reasoned that calling people who have expressly indicated that they don't want to be called is abusive. The FTC argued that Congress gave overlapping power to two federal agencies; either could have established the registry. But in light of the more specific grant of power to the FCC, Judge West held that the FTC's power to regulate abuse could not be construed to cover all commercial telemarketing calls.

That seems fair, until one considers that after the FTC announced its plans to go forward with its registry, Congress specifically ratified the plan -- showing it did indeed intend the FTC to have jurisdiction. In February of 2003, Congress appropriated money specifically for the purpose of implementing the FTC's no-call registry. Then, in March, Congress enacted the Do-Not-Call Implementation Act. Oddly, this wasn't sufficient for Judge West. He held that the Implementation Act did not "unequivocally grant the authority to promulgate a do-not-call registry. It merely recognize[d] that the FTC ha[d] done so." This is a very subtle distinction that might verge on the absurd.

In any event, Congress immediately, overwhelmingly, and unequivocally gave the FTC the authority it needed. Louisiana Rep. Billy Tauzin joked that the latest law should be called the "This Time We Really Mean It Act."

Return to overview of no call list dispute

Go to legal analysis of DNCR dispute

See a graphed timeline of DNCR history

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