Rewrite rules for Do Not Call law
10:29 PM 5/03/03

The Legislature was right to pass the state's Do Not Call Law to ban telemarketers from calling people who sign up on a Do Not Call list. But the state agency that administers the law was wrong to apply the ban to situations the Legislature did not intend to cover.

That's why the agency - the state Department of Agriculture, Trade and Consumer Protection - ought to reconsider the rules it created to implement the Do Not Call Law.

Failure to rewrite the rules to conform with the Legislature's intent would expose churches, unions and other organizations and small businesses to enforcement never envisioned by lawmakers. In addition, failure to rewrite the rules would invite a lawsuit claiming the rules exceed the bounds of the law - litigation the state would deserve to lose.

Rewriting the rules does not mean rewriting the law. In fact, it would be a mistake to make any retreat in the law, such as the Legislature's Joint Finance Committee did last week when it proposed an exemption for businesses with fewer than 25 employees.

Properly rewritten rules should continue to protect us from companies that use the phone to invade our homes with annoying pitches to switch long-distance service, buy a magazine subscription or invest in the next can't-miss money-making scheme.

The Wisconsin State Journal editorial board's interest in the Do Not Call Law deserves full disclosure. Telemarketing has in the past been a staple method of selling subscriptions for the State Journal and other newspapers. The law has dramatically restricted this sales tool. Nonetheless, we recognize that the value of the law to the public supersedes our business interest. We fully support the law. All five of our board members have signed up on the Do Not Call list.

However, we also recognize that the rules to implement the law are flawed. The problem is that when officials of the Department of Agriculture, Trade and Consumer Protection wrote the rules, they expanded the law's scope. For example, the Legislature intended to exempt non-profit organizations from the ban. But the department defined non-profit organizations so narrowly that many are included.

Furthermore, the Legislature applied the law to telephone solicitors, defined as people who employ or contract with an individual to make a telephone solicitation - in other words, telemarketing operations. But the department expanded the law's application to declare that "no person" may make a telephone solicitation in violation of the law.

In practice, these changes and others by the department stretch the law to apply to YMCAs, churches, unions and all sorts of organizations in their regular fund-raising activities. The changes also apply the law to such small-business situations as a real estate agent reminding a home buyer to get an insurance binder.

Several businesses and trade groups have complained about the rules. But the department has not budged, and the author of the law, state Sen. Jon Erpenbach, D-Middleton, has supported the department's position.

Department officials and Erpenbach maintain that opponents of the rules want to carve out exemptions that would gut the law. That's a valid concern. But the rules do not need to be left broader than the Legislature intended in order to prevent wholesale exemptions from gutting the law. There is a middle ground.

Erpenbach and the department have also argued that fears of legal action against non-profits and neighborhood businesses are overblown because that's not what they mean to do. Then why don't the rules say what they mean to do - and what the Legislature meant?

If a lawsuit against the rules, now under consideration, comes to trial, it will be up to the courts to determine its merits. But clearly, as a matter of public policy, the complaints form a convincing case. The department should make the lawsuit unnecessary by quickly agreeing to rewrite the rules.