Banks, Retailers are Attacking Anti-Telemarketing Laws; Do-Not-Call Protections are in Danger

Anti-Telemarketing Laws Under Attack

Top News

Privacy Groups, Senators Oppose Preemption of Anti-Telemarketing Laws. EPIC and 11 consumer advocacy groups urged the Federal Communications Commission not to preempt strong anti-telemarketing laws. Retailers like the Sports Authority, banks, and telemarketers are trying to invalidate all state telemarketing laws, which would lead to a massive increase of unwanted sales calls. Sen. Bill Nelson and nine other senators also filed a letter (pdf) opposing preemption. For more information, see the Indiana Attorney General's Save the Do Not Call List page. (Jul. 29, 2005)

Introduction

Eighty million Americans have joined the national telemarketing Do-Not-Call Registry. As a result, for the past two years, Americans have been able to enjoy the dinner hour in peace.

But your privacy is under siege by big banks and retailers who are seeking to exploit a loophole in the Registry. If you don't act now, the quiet dinner hour will again be a thing of the past.

Retailers like the Sports Authority, and banks including J.P. Morgan, Bank of America, Capital One, Wells Fargo, and Citigroup are trying to invalidate laws in five states so that they can place "pre-recorded voice message" telemarketing calls to their customers. These five states do not recognize loopholes in the federal law, and if these state protections are preempted or superceded by federal law, there will be a flood of telemarketing.

Even if you are on the Do-Not-Call Registry, your bank and every business you have frequented will be able to start calling you. Not only that, they'll be able to use a computer voice to call you, making it possible for the companies to irritate tens of millions of people.

You can stop this rollback of anti-telemarketing laws by filing comments with the Federal Communications Commission opposing the numerous petitions filed by banks, telemarketers, and retailers.

What You Can Do

Click on this link and tell the FCC that:

You support strong state-level protections against telemarketing.

You don't want pre-recorded messages or telemarketing, even from your own bank or companies with which you do business.

The FCC should fix the "established business relationship" loophole so that businesses can't telemarket individuals unless they first give clear notice of the intent to telemarket, and gain verifiable, affirmative consent of the customer.

Detailed Background

Major retailers like the Sports Authority, telemarketing companies, and the big banks have a plan to make the Do-Not-Call Registry irrelevant. These groups have petitioned the Federal Communications Commission, asking the agency to "preempt" or supercede anti-telemarketing laws in five states--Florida, New Jersey, Indiana, Wisconsin, and North Dakota.

Three of these states (New Jersey, Indiana, and Wisconsin) do not recognize the "established business relationship" exception. This loophole to the Do-Not-Call Registry allows companies to contact their current customers. While that may sound reasonable, the devil is in the details: If you make any purchase, no matter how small, or request any information from a business, you have created an "established business relationship." In the case of purchases, the business may call you over the next 18 months; if you merely requested information, they may call for 3 months. This means that merely buying a cup of coffee create a "relationship" that would allow the coffee shop to call you, even if you are on the Do-Not-Call Registry.

Two of these states (North Dakota and Florida) do not allow telemarketers to send "pre-recorded voice" messages to individuals. In this marketing technique, a computer is programmed to call thousands of people and play a recorded message. Telemarketers add "ums" and background noises to the recorded message to fool the listener into thinking that the call is from a live person. Unlike live telemarketing, pre-recorded voice requires the Sports Authority and the banks to use fewer resources, allowing them to initiate millions of calls a day.

If the Federal Communications Commission preempts these five states, and forces them to recognize these loopholes, telemarketing will increase dramatically. These five states are protecting the whole nation from unwanted telemarketing. If their laws are invalidated, telemarketers will begin invasive tactics that they currently can't use.

State Attorneys General have led the charge against preemption of state telemarketing laws. Below there are links to the telemarketers' petitions, the Federal Communication Commission's requests for comments, and petitions by the state Attorneys General in opposition to preemption.

Sports Authority Preemption Petition (PDF). In this petition, the Sports Authority explains how it targets residents of Florida for pre-recorded voice message telemarketing.

Preemption is Bad for Consumer Protection

EPIC maintains detailed policy arguments against preemption of consumer protection law on policy arguments against preemption of state law. For more information on the following arguments, see EPIC's Preemption Page.

Historically Most Privacy Law Allows States to Provide Greater Protections

Preemption Stops States From Performing In Their Traditional Role as "Laboratories of Democracy"

State Legislators and Law Enforcers are More Accountable to the Public Interest

Who Is Behind This Invasion of My Privacy?

The Direct Marketing Association, American Teleservices Association, the Sports Authority, the American Bankers Association, telemarketing companies, and Washington law firms (Venable LLP and Wiley, Rein, and Fielding) are leading the assault on your privacy. Also members of the Consumer Bankers Association are the strongest opponents of privacy. They are:

1st Financial Bank USA, Advanta Corporation, Alpine Bank, AmSouth Bancorporation, Associated Banc-Corp, BancFirst, Banco Popular, BancWest Corporation, Bank of Amarillo, Bank of America Corporation, BankAtlantic Bancorp, Inc., Bank of Hawaii Corporation, Bay View Capital Corporation, BB&T Corporation, Beneficial Savings Bank, Capital One Financial, Cenlar FSB, Central Pacific Bank, Chevy Chase Bank, Cigna Financial Services, Citigroup Inc., Citizens Financial Group, Inc., Comerica Incorporated, Commerce Bancorp, Inc., Commerce Bancshares, Inc., Compass Bancshares, Inc., Cullen/Frost Bankers Inc., Delaware Place Bank, Discover Financial Services, Inc., Eastern Bank, E*Trade Bank, Fidelity Bank, Fifth Third Bancorp, First American Bank, First Citizens BankShares, Inc., First Community CU, First Merit Corporation, First Midwest Bank, First National of Nebraska, Inc., First Signature Bank & Trust, First Tennessee National Corp., First United Bank & Trust, Fort Knox National Company, GMAC Bank, Guaranty Bank, S.S.B., Harris Bankcorp, Hibernia Corporation, HSBC Bank USA, Hudson United Bancorp, Huntington Bancshares, Inc., Integra Bank Corporation, Independence Community Bank, Independent Bank, J. P. Morgan Chase and Co. , KeyCorp, LaSalle Bank Corporation, M & T Bank Corporation, Marshall & Ilsley Corporation, MBNA America Bank, N.A., National Bank of Cambridge, National City Corporation, NetBank, Inc., NewAlliance Bancshares, New South Federal Savings Bank, North Fork Bank, Old National Bancorp, PNC Financial Services Group, Provident Bankshares Corporation, Providian Financial Corporation, RBC Centura Banks, Inc., Regions Financial Corporation, Rockland Trust Company, San Antonio Federal Credit Union, Sovereign Bancorp, Inc, Stock Yards Bank & Trust, SunTrust Banks, Inc., TCF Financial Corporation, T. D. BankNorth Group, Inc., Tompkins Trustco, Trustmark Corporation, U.S. Bancorp, UnionBanCal Corporation, United Bankshares, USAA Federal Savings Bank, Wachovia Corporation, Washington Federal Savings, Washington Mutual, Inc., Wells Fargo and Company, Inc., Webster Bank, Wilmington Trust Company