The Federal Communications Commission is seeking comments from interested parties with regard to whether the Telephone Consumer Protection Act (TCPA)— which is a federal law regulating interstate telemarketing calls— preempts state laws that regulate interstate telemarketing calls. The resolution of this proceeding will greatly impact many different types of entities, including the following:

Nonprofit Organizations. Under the TCPA, calls made by or on behalf of tax-exempt non-profit organizations are generally exempt from the do-not-call rules. Many state regulations, however, place significant restrictions on such calls.

Entities that make non-commercial calls. A few states regulate such calls to a certain extent. At least one state places restrictions on calls made in connection with interstate political polling.

Entities that make telemarketing calls using prerecorded messages. Many state regulations include far more stringent restrictions than the TCPA on calls using prerecorded messages.

Entities that make telemarketing calls to persons with whom they have an established business relationship under the TCPA. Some state regulations either have no established business relationship exemption or have a much more narrow exemption.

Entities that wish to make uniform disclosures during each call in compliance with the TCPA. A number of state regulations impose additional requirements on the timing and nature of the disclosures that must be made.

Entities that wish to make calls during the hours of the day permitted under the TCPA. Many state laws impose greater restrictions than the TCPA on the hours during which such calls can be made, and some states ban such calls either on certain days of the week or during specified holidays.

Entities that do not wish to pay certain state fees relating to telemarketing. These fees include, for example, the cost to purchase state do-not-call lists even though state lists should have been incorporated in the national registry.

Entities that wish to make unsolicited calls to businesses. Some states are considering legislation that would expand their do not call rules to include calls to businesses.

Comments are due 30 days after publication of the FCCs public notice in the Federal Register, and replies are due 20 days thereafter.

For more information, contact:

Alan Fishel
202.857.6450
fishel.alan@arentfox.com

Jeffrey Rummel
202.715.8479
rummel.jeffrey@arentfox.com