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FTC Given Go-Ahead to Enforce Do Not Call List

WASHINGTON (AFP eWire - Oct. 8, 2003) - A federal appeals court has ruled that the Federal Trade Commission (FTC) can move forward with implementation of the National Do Not Call Registry while it awaits a final court decision.

The new ruling allows the FTC to enforce the Do Not Call list - including issuing fines to telemarketers that do not comply with the registry - pending an appeal on the constitutionality of the registry. The court also ruled that the appeals process must be expedited, scheduling oral arguments for Nov. 10.

The Oct. 7 decision is just the latest in a string of legal rulings. After a Sept. 25 court ruling declared the registry in violation of the First Amendment and halted the enforcement of the list, the federal government, consumers and telemarketers alike were confused about whether the list could be enforced or not. More than 50 million people had signed up for the list, which was to take effect Oct. 1.

Although charities are exempt from the national registry, AFP has been particularly concerned with the Sept. 25 decision by U.S. District Judge Edward W. Nottingham, who said that charitable solicitations are just as intrusive and unwanted as commercial calls.

By exempting charities from the national registry, the FTC has 'imposed a content-based limitation' on what calls consumers can ban, the judge said. Because the FTC did not give consumers the right to ban charitable solicitation calls through the national registry, the government has placed a restriction on speech, the ruling stated.

However, the latest ruling stated that the government hasn't completely exempted charities from the list because homeowners have the right to ban charitable calls by calling charities directly and requesting to be placed on their individual do not call lists.

Rules affecting charities

The Do Not Call registry is just one of several amendments to the FTC's Telemarketing Sales Rule, which regulates how telemarketers can interact with the public. The amendments contained several changes that have not been affected by recent court decisions.

Although charities are exempt from the rules, for-profit fundraisers working on a charity's behalf must adhere to them. The rules state that:

  • Individuals can only be called between the hours of 8 a.m. and 9 p.m.
  • Individuals must promptly be told - before making a pitch - the identity of the charity and that the call is a charitable solicitation.
  • All material information about the solicitation must be disclosed.
  • Deception about any terms of the gift/solicitation is strictly prohibited.

The most important new rule requires for-profit fundraisers to honor individual do not call requests. If an individual asks to not be called by a particular charity, that charity and/or for-profit acting on its behalf must comply and ensure that the individual is not contacted again.

The Telemarketing Sales Rule also restricts unauthorized billing (telemarketers must receive an individual's informed consent before billing charges), limits abandoned calls or 'dead air' time and requires telemarketers to transmit their telephone number and if possible, their name, to an individual's caller I.D. service.

AFP will continue to monitor the Do Not Call court cases and keep members updated.

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