Do-not-call list and the history of cell phones

Nov 29 2013 - 2:48pm


Did you have a cellphone in 1991? Do you even have a landline in 2013? Twenty-two years ago, President Bush (the first one) was the president. We were in the Iraq War (the first one). Arnold Schwarzenegger led the box office with Terminator (the second one). Cell phones were compared by everyone to masonry (bricks) and it cost the gross national product of a small Caribbean island to make a phone call. Congress was doing something in 1991 that they don't do much of today: they were passing laws.

One new law was the Telephone Consumer Protection Act of 1991, or as known by the acronym-loving legal profession, the TCPA. There was a blight upon the land in 1991 -- telemarketers.  The family would sit down to dinner and the phone would ring.  The phone seemed to ring all the time and only rarely was it someone you actually wanted to converse with -- sales calls, collection calls, even automated calls were starting to appear. Caller ID was a nascent technology and most houses still didn't have that luxury. The phone would just blindly ring at any time.

To aid the voting public, Congress passed a law that prohibited solicitation calls before 8 a.m. and after 9 p.m. The law created the now much loved, National Do Not Call Registry, which you can still sign up for at (from all indications a government website that functions quite nicely).  At the time the law was passed, however, Congress required the FCC to establish regulations to establish the "do not call list," which the FCC proceeded to do in a rather shoddy and inefficient fashion.  

Finally, under President Bush (the second one) the FTC (not to be confused with the FCC) actually created a National Do Not Call Registry and Congress passed a law saying they could. The telemarketers didn't like the law, sued over its constitutionality and lost. The government set up a website. Telemarketing calls stopped. Government can get things done, it just might take a decade or two.

Another thing that the TCPA did was protect those Wall Street tycoons who could actually use cellphone technology back in 1991 from having their cellphone bills run up by unwanted telephone calls. The TCPA banned automated calls to cell phones -- and still does. (Politicians please note this, because I hadn't read this law prior to the last election cycle.) Automated calls can still go to landlines, but not cell phones.

Twenty years after Congress created the TCPA, cell phones have proliferated and the law hasn't changed. So of course, some enterprising lawyers have found a way to profit since the ban on automated calls to cell phones carries with it a $500 penalty per phone call. Granted, it takes a lot of phone calls to cover attorney fees, but the thing about automated dialing (or texting) is a machine can make a lot of phone calls. So most TCPA litigation falls into the class action category where attorneys can bunch a lot of violations into one lawsuit.

The thing about laws is, we write them down and they don't change -- at least until they are pushed through the legislative sausage grinder again. Laws can improve our lives, even with something as simple as eliminating telemarketing calls. Bigger issues, such as health care and immigration, require more attention from the legislature and the public, not less. Laws work, but 20 years can go by and some things will work, some things will fail and new things will become important, even from the same old law. 

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or

From Around the Web