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(SACRAMENTO) – California State Attorney General Bill Lockyer and Colorado Attorney General Ken Salazar today filed a "friend of the court" brief on behalf of the Attorneys General from 46 states, the District of Columbia and Puerto Rico, urging the United States Court of Appeals for the Tenth Circuit Court to uphold the National Do Not Call Registry to protect consumers from unsolicited commercial phone calls.
"There is no constitutional right for telemarketers to invade the privacy of our homes to pitch products we don't want and didn't ask for," Lockyer said. "The right of consumers to block unwanted commercial calls by registering phone numbers on a Do Not Call list trumps the right of uninvited commercial telemarketers to interrupt us at home."
In the "friend of the court" brief, the Attorneys General argue the Do Not Call regulations enacted by the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) are constitutional and should be upheld. The brief notes that when the federal agencies approved the national regulations, 27 states already had enacted Do Not Call laws to protect consumers in their states. Most of those laws were carefully drafted to recognize legitimate First Amendment rights.
The Attorneys General brief points out the desire of consumers to have peace and quiet in their own homes was carefully weighed against the ability of commercial telemarketers to conduct business: Individuals who are willing to accept some commercial calls may choose to register their telephone number on the Do Not Call list, and then provide authorization to select companies whose calls they are willing to accept. Individuals who do not register their phone numbers on the national list may inform individual companies that they do not wish to receive their calls and ask to be placed on the company's internal do-not-call list.
"Because of this flexibility," the Attorneys General argue, "there is no reason why a telemarketer will be blocked from calling a willing listener."
Joining the California and Colorado Attorneys General were their colleagues in: Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming.
More than 6.1 million California phone numbers are among the 50 million numbers on the Federal Trade Commission's National Do Not Call Registry.
As president of the National Association of Attorneys General, Lockyer has taken the lead on behalf of the state Attorneys General in defending the federal program. The "friend of the court" brief, filed today in the federal appellate court in Denver by the Colorado Attorney General's Office, supports the position of the FTC and the FCC in Mainstream Marketing Services, Inc., et al. v. Federal Trade Commission. The lawsuit challenges the constitutionality of the FTC Do Not Call regulations.
California was poised to implement its own, state-operated Do Not Call statute in January 2003. The Attorney General's Office devoted considerable resources to develop the regulatory and technological infrastructure needed to create the list and enforce the prohibition on calls to phone numbers on the list. During the state's preparations, the Federal Trade Commission announced it would establish and maintain a national list. After consulting with the FTC and consumer advocates, the California Attorney General's Office opted to revise its state-only plan, and enforce state and federal laws against businesses that continue to call California numbers on the FTC's list. Having one list saved the state and consumers more than $2 million, eliminated confusion for consumers faced with two separate registries and cut costs for businesses that would have had to purchase both a state and federal list.
If the federal appellate court strikes down the FTC and FCC regulations, California may have to return to its original plan after already suffering a year-long delay in providing relief to those consumers who believed registering with the FTC would block telemarketing calls to their home and cell phone numbers. Such a ruling also may hamper the ability of other states to enforce their laws and regulations.