Legal Question in Business Law in California

I have a question about the California "Do Not Call Registry" rules and whether the rules are preempted by the federal rules

The California Rule is that: A person may not make any telephone solicitation calls to any California number on the �do not call� list unless one of the following applies: (1) the telephone call is made pursuant to an express written agreement by the consumer.... (this is the only one I care about).

However, the express request exception does not apply if any of the following has occurred: (1) 30 days have passed since the consumer contacted the business with the purpose of inquiring about the potential purchase of goods or services, (2) 30 days have passed since the last date on which the consumer contacted the business, or (3) the call is made after the consumer has requested that no further telephone calls be made to him or her. � 17592(e)(2).

The federal rule is basically the same except it says 90 days and not 30 days. I did research and the federal statute only preempts the state statute if the state statute is LESS restrictive than the federal. 47 U.S.C. 227(e)(1). In this case it is not and it appears that CA law applies (the 30 day rule)

So, my question is this: does the preemption attach piecemeal or in whole, meaning, can one parse through the California statute and pick out selective provisions if they appear more protective? Or in general, is the federal law basically inapplicable in CA?

Thank you.


Asked on 7/23/10, 3:23 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Based on somewhat sketchy evidence, I'd be of the opinion that there isn't Federal preemption of this field. A West Virginia telemarketing law was upheld as not invalid because of Federal preemption in BlueHippo Funding, LLC v. McGraw (S.D.WVa 2009) 609 F.Supp.2d 576. I'm reasonably sure the California Legislature in passing Business & Professions Code 17592 and related statutes was well aware of the possibility of Federal preemption and designed the California law so as not to invade Federal territory. The BlueHippo decision seems to make it clear that there is both a state and an interstate interest, leaving room for states to legislate what may go on within their borders. Further, it's my hunch that Federal law would apply to calls originating out of state, while the Calif. B&P Code would apply only to intrastate calls.

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Answered on 7/23/10, 7:15 pm


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