February 2011: Indiana Doubles Down on DNC
by Joseph Sanscrainte, an attorney specializing in telemarketing law.
On January 31, 2011, the Indiana House of Representatives passed H.R. 1273 - a bill that substantially changes Indiana's Do Not Call law. The purpose of this bill is to expand the reach of the Indiana DNC program to include wireless numbers (standard and prepaid) and VOIP numbers, and to make it clear that the DNC law applies to ANY transmission to a telephonic device, not just spoken words.
To accomplish these changes, HR 1273 starts by amending Indiana's definition for a "consumer" in the DNC law. Currently, a "consumer" is defined as a residential telephone subscriber who is an actual or a prospective purchaser or charitable donor. Under the proposed new law, a consumer is still a "residential telephone subscriber" but the common understanding of that term (i.e., an owner of a landline at a residence) is substantially changed. Specifically, the new language expands the coverage of the DNC law to any consumer who, for the telephone service received, has a "place of primary use" in Indiana, or is issued an Indiana telephone or identification number.
What's a "place of primary use"? Glad you asked. This term is defined as the street address representative of where the consumer's use of the telephone service "primarily" occurs, which could be a residential street address, or a VOIP user's registered location, or, in the case of mobile telco services, the licensed service area of the home service provider. Bottom line here? Indiana DNC rules now cover all wireless numbers (standard and prepaid calling services) as well as VOIP numbers.
Things get really interesting when HR 1273 takes a look at the definition of the term "telephone sales call." Right now, it means a telephone call (including recorded messages) made to a consumer for the purpose of making a sale or soliciting a charitable donation. Under the new language, the term expands to include:
- Transmission of a text message or a graphic message using short message service (SMS);
- Transmission of an image, a photograph, or a multimedia message using multimedia messaging service (MMS); and,
- Transmission of a communication or message using methods or technologies similar to those described above.
As technology changes, and the marketplace makes new and different communication methodologies available to marketers, it's inevitable that legislators and regulators will pivot and make changes as appropriate to address new technology. In other words, this ain't your daddy's DNC law. HR 1273 is now under consideration by the Indiana Senate. In the meantime, expect to see a flurry of activity at the state level as other states begin to realize that their DNC statutory language needs to be brought up to date.