Advertising Law Blog

The DMA announced that yesterday that it was ending enrollments in its telephone preference service (TPS) The TPS was a laudable industry alternative - initiated way back in 1985 - to deal on an self-regulatory basis with persons who did not want to receive telemarketing calls. Indeed, in Maine, Pennsylvania and Wyoming, the TPS is the official state registry, a concept of utilizing an existing self-regulatory model that failed to surprisingly failed to gain national momentum even though the costs to the states would have been born by industry.

According to the DMA, DMA members and other organizations should change Web sites, documents and forms that are currently used to direct consumers to the Telephone Preference Service. Instead, requesting consumers should be directed to the FTC's national do not call list.

The DMA's decision to no longer accept new consumer registrations beginning November 1, 2006 (except from residents of Maine, Pennsylvania and Wyoming) makes sense given industry's general failure to make it a workable alternative. Indeed, the FTC recently reported that approximately 125 million telephone numbers, are on the national do not call list. making the TPS essentially obsolete.

What is troubling, however, is that the many states that continue to utilize their own state do not call lists have yet to see the wisdom in having one central list that virtually every man, woman and child already knows about. To be fair, since the launch of the national do not call list in 2003, some states, such as New York, have discontinued individual do-not-call programs, merging their information with the federal list. Yet other states continue to maintain separate do-not-call lists that may or may not be shared with the federal list. These states -- presumably for the sake of revenue generation or staff justification - continue to cause confusion for consumers and industry by insisting on the maintenance of a national do not call list and a state do not call list.

Those states' refusal to synthesize their lists with the national lists only results in consumers being confused as to where to sign-up, as well as marketers being confused as to which lists they are required to access and how often must they be updated. Moreover, requiring continued access and scrubbing of state and federal lists results in unnecessary duplication and expenditures by marketers in being required to access (with a fee, of course) state and federal lists and scrub accordingly.

Given the enormous publicity the FTC has generated with respect to its list, and the outrageous fees it charges for access by industry, the FTC should have stepped up to the states and pre-empted their maintenance of separate lists. As a result, consumer confusion continues while marketers must continue to jump through duplicative hoops and pay unnecessary access fees.

Hopefully, the DMA's actions with respect to its TPS will enlighten more states into doing the right thing for both consumers and marketers by centralizing one do not call list.