Header, the Administration of the Honorable Lincoln C. Almond
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August 7, 1996


In accordance with the provisions of R.I. Gen. Laws § 43-1-4, I am transmitting herewith, with my disapproval, 96-S-2006, As Amended, "An Act Relating To Criminal Offenses-Public Utilities."

This Act would make it a crime to solicit a person by telephone after that person has registered with the Department of Attorney General to be placed on a "no telephone sales call" listing.

There are several major flaws with this legislation. The Act raises a number of First Amendment concerns and it unduly burdens interstate commerce. In addition, the legislation is problematic because it is unjustifiably expensive, duplicative and will likely lead to confusion and inconvenience for consumers and businesses alike. Moreover, the Act appears to create a strict liability penalty for all violations, whether or not intentional.

First, the Act is likely unconstitutional under the First Amendment because it unreasonably infringes on the rights of companies to freely communicate their messages by telephone. There are effective and less-burdensome alternatives to address the problem of unwanted telephone calls than the method chosen by this Act. As such, the " First Amendment rights of companies to freely communicate with consumers should trump the procedures mandated by this Act.

In addition, the Act likely violates the Commerce Clause of the United States Constitution because it fails to distinguish Rhode Island citizens from citizens of other states, thus requiring all persons engaging in "telephone solicitation" to comply with the Act, regardless of their state of residence. The federal Telephone Consumer Protection Act (TCPA) already has established federal standards regarding telephone solicitations applicable to all telemarketers, including those operating in Rhode Island. The TCPA preempts state laws purporting to regulate interstate marketing, and in fact provides consumers with simple and effective solutions to the problem of unwanted telephone solicitations. If a Rhode Island consumer receives an unwanted telephone solicitation, the consumer has the right, under federal law, to ask the telemarketer not to call again. Moreover, federal law provides that if a person receives a request from a residential telephone subscriber not to receive calls, the person must record the request and place the subscriber's name and telephone number on the do-not-call list at the time the request is made. A do-not-call request must be honored for ten years from the time the request is made. Although the TCPA provides that it does not preempt any state law imposing more restrictive intrastate requirements or regulations on telemarketing activities, the TCPA does preempt state laws purporting to regulate interstate marketing. Thus, to the extent this Act imposes restrictions on out-of-state telemarketers calling residents within Rhode Island or on Rhode Island telemarketers engaging in interstate commerce, this legislation is preempted by federal law.

This Act also will likely cause a great deal of confusion among Rhode Island consumers and businesses because the federal law preempts this legislation with regard to interstate commerce. In reality, this Act may only apply to Rhode Island telemarketers calling Rhode Island consumers. Suppose that a Rhode Island consumer pays the Attorney General's Office to be placed on the no-call list. Although Rhode Island telemarketers will not be able to call that consumer, the provisions of this Act would not apply to out-of-state telemarketers. This unfairly burdens in-state telemarketers.

Lastly, it is important to note that this legislation results in substantial administrative burdens on the Department of the Attorney General because there are no provisions for funding the AG for the database creation, maintenance, and staff necessary to implement the legislation.

For the foregoing reasons, I disapprove of this legislation and respectfully urge your support of this veto.


Lincoln Almond