Indiana Attorney General Greg Zoeller testified in front of Congress recently to oppose legislation aiming to strip Hoosiers of their telephone privacy rights.
Zoeller spoke on House Resolution 3035 known as the “Mobile Informational Call Act of 2011” at a U.S. House Subcommittee on Communications and Technology hearing in Washington, D.C.
This proposal would amend the Communications Act of 1934 to allow for robo-calling to all cell phones and strike down Indiana’s Do Not Call law. If passed, states could not enforce their more strict laws against junk faxes, prerecorded calls or text messages.
“Indiana has spent more than 20 years protecting telephone privacy from the 1988 Auto Dialer law to the addition of cell phones to the Do Not Call law in 2011,” Zoeller said. “The success of our statutes have made our citizens appreciate their privacy and made them sensitive to harassing phone calls. Consumer protection is traditionally an issue of state authority and we should take this opportunity strengthen the Telephone Consumer Protection Act and not weaken it.”
U.S. Rep. Lee Terry, R-Neb., sponsor of the legislation, said he is also concerned about this proposal overriding or preempting state laws too, and asked Zoeller to help draft language that would protect states’ powers.
Zoeller agreed, but said he is cautious because assurances were also made during the drafting of the 1991 Telephone Consumer Protection Act (TCPA) that federal law would not override or preempt state law – but a federal court recently struck down an Indiana statute on preemption grounds.
“While preemption of such state laws has not been a problem up to this point, Indiana’s recent litigation experience with Patriotic Veterans Inc., demonstrates that states and their residents cannot take their residential privacy protections for granted any longer,” Zoeller said.
Patriotic Veterans Inc. challenged Indiana’s Automatic Dialing Machine Statute in September. The U.S. District Court for the Southern District of Indiana ruled the state’s ban on robo-calls playing political messages cannot be enforced if the calls originate outside Indiana, because federal law allows for these types of calls. Zoeller is appealing the decision.
Zoeller told committee members the best way to eliminate uncertainty concerning interstate and intrastate enforcement of telephone privacy laws is to clarify that no state laws are preempted by the TCPA.
“This slight modification should convince telemarketers and courts alike that states have every right to stop the invasion of residential privacy, and the imposition of costs on consumers by means of telephones and fax machines,” Zoeller said.
